[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].