Supreme Court hates disabled people and eats children for lunch. Probably.

[Update 3: See follow-up post here.]

[Update 2: see the end of the post for the TL;DR version.]

That’s the general feeling you’d come away with if you’d read any of the media coverage of State v. Fourtin [PDF], a recent decision in which the court reversed the conviction of Fourtin for allegedly sexually abusing a woman with cerebral palsy1[yes, there’s no denying that what Fourtin did is skeevy as hell].

Never one for actually reading the damn opinions in detail, much less understanding what they mean, the press has unequivocally taken to proclaiming [we made ThinkProgress and HuffPo!] that the court has ruled that the victim must prove that she physically resisted to prove lack of consent. Just look at the headlines: “Court Requires Disabled Rape Victim To Prove She Resisted, Calls For Evidence Of ‘Biting, Kicking, Scratching’2” and “Richard Fourtin Case: Connecticut Court Sets Accused Rapist Free, Says Handicapped Victim Did Not Resist”. [Hello, search engine optimization keywords!]

Well, putting aside that whole burden of proof thing being on the State, the short answer is yes and no. The court didn’t rule that victims in general must physically resist in order for there to be lack of consent. This is not some regression back to 1950s misogynist court decisions. To imply this is idiotic and an intentional lie.

But what the court did say is that under the statute that the prosecutor decided to charge Fourtin with violating, yes, if in fact the victim was capable of physically making her lack of consent known, then a person cannot be found guilty. A more accurate headline would be “Court Requires Prosecutor To Prove That Victim Is Physically Unable to Communicate Unwillingness to Consent Because That’s What The Prosecutor Alleged A Man Did’. If you’ve got more than a 2nd grade reading comprehension level, you will already have noticed that that’s not the same as “victim must prove resistance otherwise can be raped”.

So let’s break this down. Here’s the relevant statute that the prosecutor chose to prosecute:

(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (3) such other person is physically helpless;

So what does physically helpless mean? Let’s go to another statute!

(6) “Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

She wasn’t unconscious, so the relevant portion is “for any other reason is physically unable to communicate unwillingness”.

[Before we delve into the facts of this case, it’s especially important in a case that evokes such a strong ick factor as this one to remember what exactly we ask of our system: we ask that the state proves its charges beyond a reasonable doubt. We ask that the evidence surmount that extremely high standard. Because not liking someone cannot be good enough to convict. Many lawyers I know routinely ask potential jurors if they’d convict because of a bad feeling or if they thought it “good enough”. Good enough is not good enough. We don’t want – can’t have – our legal system making determinations of guilt based on how revolted we are at the alleged acts. If that’s our standard, then there are far too many people who will be quick to put others in jail because of their off-beat proclivities. The standard must remain the standard and that is proof beyond a reasonable doubt. As you read the following facts, ask yourself: are you firmly convinced that she was physically unable to communicate unwillingness or are you just angry that this guy is an asshole and he did something really fucking shady?]

Update: A little bit about her and a straight up fabrication to embellish the story and get people angry. That same ThinkProgress piece describes the victim as follows (and the quotations are in their article, which are also repeated by the HuffPo piece):

a woman who “has severe cerebral palsy, has the intellectual functional equivalent of a 3-year-old and cannot verbally communicate.”

Notice the quotes? That’s a flat out lie. That sentence does not exist in either the majority or dissenting opinions. While it is true that she has severe cerebral palsy and cannot verbally communicate, nowhere is it mentioned that she has the “intellectual functional equivalent of a 3-year-old”1. But let’s not let facts get in the way of a good story. /end update.

What is important to note is that the “physically unable” phrase is in the same subsection as “unconscious” implying that the legislature meant to equate the two on some level. Indeed, the majority opinion goes through a lengthy analysis of cases from other jurisdictions on identical issues and concludes that virtually all of them reached the same conclusion. But I digress, so let’s look at the evidence introduced at trial:

[T]he assistant state’s attorney (prosecutor) elicited testimony from Dee Vetrano, the director of residential support at the victim’s group home, regarding the victim’s ability to communicate her preferences.  Specifically, the state asked Vetrano whether the victim ‘‘is susceptible to being suggested to or manipulated in any way?’’ Vetrano replied: ‘‘No. She is not. . . . She’s  . . . very direct in what her beliefs are or what her feelings are toward others. [The victim is] actually . . .  one of [the] people we use when we hire staff. We do initial interviews with staff, and if there’s someone that we’re interested in hiring, we always bring them to the  house . . . to see them interact with clients. . . . We have had a situation where one individual was hired  . . . and it’s someone that the group home manager felt strongly about, and [the victim] to this day does not care for this person. It’s not that she hates her . . .  but she really . . . prefer[s] [not] to have that individual work with her, and she still expresses that, even after knowing that it’s someone [who] I value as an employee. . . . So, she’s not swayed in any way by her feelings . . . and she will always consistently indicate those to us.’’

When the prosecutor asked S [the victim’s mother] whether the victim would try to hurt him [the mother’s ex-husband] physically, S responded: ‘‘Physically. Biting, scratching, leaving marks . . . [k]icking.’’ Subsequently, during cross-examination, defense counsel asked S whether the victim had ‘‘any problem whatsoever communicating that she did or didn’t want to do something . . . .’’ S responded that the victim ‘‘never had a problem.’’ Defense counsel then asked: ‘‘If you took her to the shower when she didn’t want to go to  the shower, I think you testified [that] she would bite  you?’’ S responded, ‘‘Yes, and kick [and] scratch.’’

Is that the equivalent of someone who is unconscious? There’s more:

Thereafter, the defense called several witnesses who testified that the victim often used gestures, kicking, biting, screaming or screeching to express herself. Sandra Newkirk, a home health aide who had cared for the victim for several months prior to the assault, testified that, when the victim did not receive the food she was expecting, ‘‘[s]he would have a fit.’’ During such a fit, ‘‘[s]he would kick and, you know, kick and sort of make a groaning noise.’’ Newkirk further testified that she had witnessed the victim scratch and bite S on a few occasions. The victim’s grandmother, R, testified  that the victim had a temper and that, ‘‘[i]f she didn’t like what she was supposed to do, she would screech, and, to anyone who . . . wasn’t used to the noise . . .  it would be kind of unnerving.’’ R recalled that, sometimes, if the victim did not want to take a shower, she would bite S to the point of drawing blood, or, if the victim did not want to wear a particular pair of shoes, she would kick S when S bent down to put the shoes on her feet.

While severely physically disabled and even mentally disabled, is that “physically unable to communicate”?

In fact, after reading this case a few times I firmly believe that the State screwed the pooch many times here. Fourtin may well be guilty of something, just not this. Here’s the first way the State messed it up:

To the contrary, the prosecutor expressly told the jury during closing argument that the victim, ‘‘according to all accounts, was very vocal, very active, and, if in fact she felt that . . . [people were not understanding]  what she was saying, I believe [that] everybody [who has] testified here [has indicated that] she would throw up her arms and say ‘stop.’ ’’ During closing argument, the prosecutor also noted that the victim was ‘‘very limited in terms of . . . what type of information she can pass on to you,’’ and that she had ‘‘some difficulty  expressing herself . . . .’’ At no time, however, did the state even raise the notion that the victim was unable to communicate an unwillingness to an act. Indeed, it appears that the state believed there was no reason to contest the victim’s ability to express herself by biting, kicking, scratching, screeching, groaning or gesturing because it was the state’s theory that the victim was physically helpless, notwithstanding her ability to communicate nonverbally, in view of her limited cognitive abilities, the fact that she cannot speak and that  fact that she is totally dependent on others for all of her needs.

In order to get the jury to find her believable, the State itself elicited testimony that she could communicate in some fashion because it mistakenly believed that the statute didn’t care about that.

Ah, but you’re thinking, who gives a crap if she could communicate at other times? Surely she was physically unable to communicate anything when the defendant was assaulting her! That occurred to me too, so I went looking for the recitation of those facts. What I found instead was this:

the failure of the state to present any evidence probative of whether the [victim] was unable to use these forms of communication at the time of the alleged assault[.]

In fact, both the majority and the dissent are severely lacking in details of how the victim said she reacted to the sexual assault. I can’t tell from the opinions if the State even introduced any evidence of that at trial. Here are the briefs in this case. Read them if you please and if you find something, leave a comment. But barring that, there was no evidence – none – that she was physically unable to communicate during the assault. The general theory of the State was that she was physically unable to communicate generally, which was – as mentioned above – countered by their own evidence and that of the defense. Isn’t that a requirement of the statute that I quote way up there? How do you expect a court to uphold a conviction that isn’t based on any evidence and in light of evidence to the contrary?

Look, I get it. A physically handicapped woman may have been sexually assaulted. It’s gross and disgusting. Fourtin definitely has something wrong in his head (if he did this at all – I don’t know whether the defense at trial was that he didn’t do it or that it was consensual) if he’s having sex with someone who has the severe shortcomings that the victim here had. [Putting aside entirely the question of whether someone with her disabilities can and should have the opportunity to have as normal a sex life as can be possible.]

But what, exactly, is he guilty of? Is he guilty of forcing someone who is physically unable to communicate unwillingess to have sex? Or is he guilty of having sexual intercourse with someone who cannot consent due to mental retardation or disability?

Again, from the Supreme Court, evidence of the state’s second mistake in this case:

Indeed, as the Appellate Court suggested; see State v. Fourtin, supra, 118 Conn. App. 49; this appears to be a case in which the state ultimately proceeded against the defendant under the wrong statute. Originally, the state also had charged the defendant with sexual assault in the second degree in violation of § 53a-71 (a) (2), attempt to commit sexual assault in the second degree in violation of §§ 53a-71 (a) (2) and 53a-49 (a) (2), and sexual assault in the second degree in violation of General Statutes (Rev.  to 2005) § 53a-73a (a) (1) (B), all of which require that the victim be unable to consent to sexual intercourse because the victim is ‘‘mentally defective  . . . .’’ Because the evidence established that the victim’s cognitive abilities are significantly limited, the state could well have prosecuted the defendant under those provisions. The record does not indicate why the state decided not to do so and opted instead to pursue charges requiring proof that the victim was physically helpless. By electing to prove that the victim was physically helpless rather than mentally defective, the state removed from the case all issues pertaining to the victim’s mental capacity to consent to sex.

They charged. the wrong. statute. Heck, I think the state could’ve charged Sexual Assault in the First Degree under subsection (4) and gotten a conviction. And there probably wouldn’t have been this appeal. But they didn’t. That’s basically what it comes down to. The court isn’t saying that rape victims have to fight. The court isn’t saying that someone with mental and physical disabilities can be taken advantage of with impunity. The court isn’t saying that it’s requiring victims to prove they resisted.

You want to be angry. I understand. You think something terribly wrong has happened. And it may well have. But there’s another wrong. And that’s convicting a man of a crime for which there is insufficient evidence. Want to be upset about something? Be upset that the state pursued the wrong charge.

What the court is saying is that it is holding the state to its burden of proof. The court is saying that we only convict people if the proof exists for the crime they’re charged with. For once3, it’s saying that ‘Fourtin is a horrible human being’ isn’t a theory of guilt on this charge. For once it’s saying that the principle of ‘beyond a reasonable doubt’ still means something. For once it’s saying that our constitutional protections don’t change because we comprehensively dislike the person charged.

The court is doing what any appellate court is supposed to.

Update 2: I posted this elsewhere and it occurred to me that it’s a succinct distillation of the key issues in this case, so I’m reproducing it here.

1. Whether we like it or not, the definition of the phrase is what it is. It has been defined by the legislature and explained by previous decisions in CT and other courts in the country for a lengthy period of time.

2. The definition of “physically unable to communicate unwillingness” means something very specific. The State has to prove that. “Close enough” isn’t good enough nor should anyone who cares about the rule of law and the integrity of the justice system say otherwise.

3. My best reading of the opinion is that there was no evidence presented by the prosecutor that the victim was “physically unable to communicate her unwillingness” at the time of the incident, which is absolutely critical.

4. The fact that she is able to communicate her willingness to do things, as evidenced by the testimony of many people at the trial, goes against the state’s proof that she was physically unable to communicate at the time of this incident.

5. Honestly, I don’t know what, if any, evidence the State introduced about her reaction or behavior during this incident. It’s not mentioned in either the majority opinion or the dissent.

6. The justices’ analysis of his conviction was focused only on her physical inability because that’s the only thing Fourtin was accused of doing. Take a step back from the emotion of this case. If someone is accused of shooting someone else and the only evidence introduced at trial shows that he slapped the other person with a rolled up newspaper, should he be found guilty or not guilty? The answer should be obvious.

7. Due Process – one of the most basic protections in our system of law, which applies to each and every one of us – demands that we only convict people of those things for which they are charged. We cannot – really, there’s absolutely no way to do this nor should there be – suddenly change the charges against the person AFTER the trial has been convicted and retroactively find them guilty of something they had no opportunity to defend against.

8. There ARE other charges which would better fit the circumstances in this case. Why the prosecution chose not to pursue them is unknown to me and to all 7 justices of the Connecticut Supreme Court. It may be innocent error. As I mentioned in my own post, Fourtin may well be guilty of doing somethingelse and the conviction could well have been upheld had he been charged with committing that other crime.

9. Disabled people are very well protected by the laws of the State of Connecticut and the decisions of our Appellate and Supreme Courts. This decision does NOT say, contrary to popular opinion, that victims have to prove they resisted. It does NOT say that disabled people can be taken advantage of. What it does say is simply that there must be evidence presented of the crime that the State is accusing an individual of committing. Not another crime three subsections down or not some general societal disapproval of a general act. Specific crime; specific proof. That’s all.

10. Just FYI – that “intellectual capacity of a three year old” quote is non-existent. It is not in either the majority or dissenting opinion.

1A lot of the coverage also seems to suggest that the victim in this case had the functional equivalent of a three-year old. While certainly sensational and incendiary, it’s not true. Do this: open the PDF files of both the majority and dissent. Press Control+F. Then enter “three year” and see what hits come up. The only instances in both opinions are when they are talking about the facts of another case (People v. Huurre). Not this one. The only relevant portion about her mental level is this, from a footnote:

Ralph Welsh, a clinical psychologist, described the victim’s total functioning as akin to that of a person between the ages of two and five years old, which he based on a ‘‘total composite’’ indicating ‘‘severe to profound  deficit[s]’’ in the areas of living communication, daily living, socialization and adaptive behavior. The victim’s mathematical and language comprehension skills were between a kindergarten and second grade level. Welsh, who testified for the defense regarding what he considered to be the victim’s suggestibility during interviews and interrogations, compared the victim to a five year old child who has been ‘‘isolated’’ and has ‘‘not had contact with  anything other than a certain limited world. . . . She’s not like the average five year old child who has . . . [many] more life experiences.’’

2There are so many things wrong with the coverage, as I’ve mentioned in the post itself. Look at the ThinkProgress headline: Court Requires Disabled Rape Victim To Prove She Resisted, Calls For Evidence Of ‘Biting, Kicking, Scratching’. This is complete reading comprehension fail. It doesn’t “call for” that evidence: that’s the evidence it says the state introduced at trial that defeats its position that she was unable to physically communicate. Seriously, if this is the level of literacy that’s deemed acceptable, we’z in a lots of troubles.

3And for all of those wagging their fingers about the “liberal” judges in Connecticut, the fact that I’m writing a post supporting a decision of the Supreme Court should tell you something. I’ve spent countless hours and pixels on this blog excoriating them for their outcome-oriented opinions and their apparent lack of disregard for Constitutional protections (yes, it is hyperbole). Point of interest: know where all the “liberal” judges are in this opinion? They’re in the dissent [PDF].




26 thoughts on “Supreme Court hates disabled people and eats children for lunch. Probably.

  1. WyrdWyrd

    Reading and skimming all that, I agree the prosecution messed it up big time. And the news media did a horrible job and misrepresented, etc.

    For the sake of helpless people everywhere, I would’ve still tried to preserve the conviction on the grounds that the assault itself, while in progress, could render a person temporarily physically unable to fight back via shock.

    And if that didn’t work, then as the supreme court was about to go write its ruling overturning the conviction, I would’ve asked them each to write somewhere in their ruling that they abhor rape and condemn this sick-os actions.

    Maybe that’s not how Justice opinion statements work, I dunno.

    Definitely time for a new prosecutor in that part of Connecticut.

    Also, IMHO, that specific law needs to get revised or at least its use deprecated. It’s written from the (now outdated) point of view that consent is always implied.

    Furry cows moo and decompress.

    1. Gideon Post author

      The supreme court addresses the “alternate grounds” in their opinion and basically they say, look, if the prosecutor had pursued these different theories at trial, our outcome might well have been different. But we can’t, after the fact, convict somebody on a completely different theory than that being pursued during the trial because the person had no opportunity to defend against that at all. I think the court is right in the framing of that issue, but I obviously haven’t read the trial record so I don’t know if that is factually correct.

      I’m not sure I saw a general condemnation of Fourtin’s actions in the opinion, but it’s not really necessary. No reasonable person would think that this court – or any court – condones this kind of behavior.

      I’m not sure that the law needs to be changed at all: it addresses a very specific circumstance. Maybe it can be explained better, but then you’re treading on some really complicated areas of whether people with disabilities should have the ability to have sexual intercourse.

      Currently, this statute does not care for consent; so it doesn’t matter if the person consented. As for people with mental disabilities who cannot effectively provide consent, that’s already taken care of in another part of the statute, as I mention in the post.

      Finally, I don’t know if the prosecutor needs to be replaced. This stuff happens. I’m sure they made what they thought was a good faith effort to charge him under the right section and produced evidence. But the law is complicated sometimes and especially in areas where the statutes are hyper-technical.

      On the other hand, we have a victim who was taken advantage of sexually because of her physical and mental disabilities,so I certainly understand and share the frustration and anger. But it’s misdirected at the court.

      1. womenriseupnow

        We’ve been following this case since the decision came down and found your post and the subsequent comments fairly useful in trying to make sense of why the decision came down the way it did. We did read the decision, however, not being lawyers we were really unclear on why the mental incapacity part of the statute did not come into play.

        So then, a couple of questions for you, since we aren’t lawyers.

        Do you feel the prosecutor messed this up? That seems to be the scuttle on this in a lot of quarters… If you say that the anger is misdirected at the court, where in your opinion should it be directed?

        We’ve seen the prosecution has made a motion for the court to reconsider its decision. How much precedent is there for this in CT, and how often does the court reverse itself after delivering a decision?

        A lot of people are ready willing and able to press for some kind of action to, if not, uphold Fourtin’s conviction, to try to prevent this from happening in the future. In your opinion, is that best directed toward the legislature? And if so, if you could have, let’s say, a Christmas list of what that change to the statutes would look like, what would it encompass?


        1. Gideon Post author

          So, I have to be honest: when I saw the email notification of your comment and I saw the URL and e-mail address, I braced myself for a vituperative and ignorant comment.

          Thank you for being neither.

          Onto the substance of your comment and your questions:

          Are you clear on why the mental disability could not – and should not – be part of the equation of determining guilt in this case? The State didn’t charge this and he shouldn’t be convicted of it (I notice that this is a question you raise in your post on this decision, so I’ll head over there and provide a greater explanation).

          Did the State screw up? In a sense, yes. They chose to pursue the very limited theory of guilt that Fourtin had sexual intercourse with someone physically unable to communicate unwillingness to consent. So the Court (and the jury) should only be concerned with the definition of that section and the evidence supporting or refuting it.

          But I’m not sure this reflects any ulterior motive: it may have simply been that the prosecutor mistakenly believed that he introduced sufficient evidence. It is a reviewing court’s job to determine if that is – as a matter of law – sufficient.

          I think, honestly, the only person deserving of anger in this case is Fourtin himself, because there’s no doubt in my mind that what he did is shady (again putting aside a discussion of whether the victim here should have the right to have a fulfilling sex life). The prosecutor erred and the Supreme Court did its job.

          As for reconsideration, it has happened. It’s not common or frequent, but it’s been known to happen. However I would be very upset if they did reconsider their decision in this case in light of whatever media coverage there is and public outrage. To bully our courts into reconsidering unpopular but legally correct decisions is abhorrent and severely undermines the independence of the judiciary.

          Don’t get me wrong: you can ask all you want that the court should reconsider its decision, but if the court chooses to do so, it will be a grave mistake and we should all be extremely wary of any court doing so. It’s almost as if the court is reconsidering its decision because it doesn’t like this person or because the majority population has decreed that it doesn’t like this person. This is dangerously close to legislating against a particular person and persecution of the worst kind.

          As to your final point, I keep seeing that people are concerned that the statute isn’t clear or is too narrow. Frankly, I don’t see it. You’ve read the statute; posit a scenario that wouldn’t be covered under that statute (and keep in mind that these sections do not deal with someone who are legally allowed to consent and are able to express their consent or refusal thereof.

          I hope this sheds some light on these issues. Thanks for your comment.

          1. womenriseupnow

            Thanks, Gideon. We’ve been surprised and overwhelmed by the amount of traffic that our posts on this subject have gotten and we feel a responsibility to those people who are following us on this issue to explain how the law functioned in this case now that we understand a bit better. If nothing else, knowledge is power.

            P.S. We are going to link to your entry on this, if you don’t mind. We may also consult you for perspective on legal matters in the future.

        2. Gideon Post author

          I can’t reply to your latest comment: won’t nest below 5 levels, so I’ll respond here: I’m glad I could help provide a more nuanced understanding. Feel free to link to this post and the subsequent one!

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  6. Spencer McGrath-Agg

    Just a quick note on the “mental capacity of a 3-year-old.” I seem to recall reading that in the dissent, but it was a quote from a different case, not a description of the Fourtin’s victim.

  7. --Mona--

    Gideon, I commend you; you are absolutely right and those screeching “rape apologist” and the like are appalling. It is usually the right-wing whose “law and order” mania gets my knickers in a twist, but here it is left-of-center sectors who, apparently, have no tolerance for due process, under the “right” conditions.

    My view is that perhaps this is the kind of issue that will primarily be understood best by lawyers (yes, yes, me one). “Bad” results are sometimes dictated by constitutional protections, which are not mere “technicalities.


    1. Gideon Post author

      As someone (who I shall leave unnamed) said to me in response to this flak a few days ago: it’s all part of the left’s “war on rape/women” agenda. Which is fine, I think, because it is certainly warranted in many cases, but here hysteria and mob mentality got the better of us.

      On the other hand, it’s not like lots of people on either side of the aisle really care about civil liberties or individual rights not named in the First or Second Amendments.

      I just scolded a fellow lawyer today for using the word “technicality” and reminded him that the Constitution was not one. Somewhat facetiously, of course, but the point remains.

  8. Brassica Somnifera

    As one of those swept up in the “WTF is wrong with these people?!?!?” brain fail, I wanted to say thank you for posting this. Genuinely, not “ironically.” This is not a popular position to express out in public, yet quite necessary for anything like society based on law as opposed to pitchforks and torches (fun implements of destruction though they might be).

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  12. WyrdWyrd

    I’d like to echo Brassica Somnifera: thanks for writing this post. The Truth is important. It would be great if the news media remembered that more often.

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