Why we can’t just make stuff up as we go along, or: Due Process

What started out as a fairly fact specific hyper-technical statutory interpretation of the meaning of a phrase in an extremely narrow statute has ballooned into a general hue and cry about “rape culture” and a disregard for women’s rights.

I wrote last week about the Connecticut Supreme Court’s decision in State v. Richard Fourtin [PDF], which is only the former and has no shades of the latter. But that hasn’t stopped advocacy groups and pageview hungry tabloids like ThinkProgress and the HuffingtonPost from burying their heads in the sand about the boring reality of the opinion and instead pressing on with their fabricated quotes and blatant misrepresentation. Which is why it comes as no surprise that the Hartford Courant – never one to miss an opportunity to drum up page views and advertising revenue through the use of incendiary and sensationalist “opinion” pieces – published this “opinion” piece.

On the one hand, I’m incensed that allegedly reputable news organizations would publish pieces with a blatant disregard for truth and a fundamental – and frankly, frightening – misunderstanding of and disregard for our criminal justice system.

On the other, what better opportunity could there be to perhaps try and educate people and correct these pervasive misconceptions. So I’m going to give this another shot in the hope that maybe one person will walk away with a more accurate understanding of our core fundamental protections and rights.

The opinion piece is fortuitously titled in the form of a question – “He’s Not Guilty Because Disabled Woman Didn’t Fight Back?” – allowing me to respond appropriately: “No”. In order to make this post coherent, I’m going to reproduce her opinion and respond point-by-point.

First, Cindy Luo (the author of the opinion piece) opines:

The Appellate Court claimed, in justifying its decision, that because the defendant could “communicate by gesturing and vocalizing … and that witnesses testified that she could indicate her displeasure by means of gestures, physical aggression — including biting, kicking and scratching — and by making screeching and groaning sounds,” then “no reasonable jury could have concluded that she was physically helpless at the time of the assault.”

She means ‘complainant’ when she says ‘defendant’, but other than that it’s accurate. Moving on:

Fourtin was sentenced in 2008 to six years in prison for attempted second-degree sexual assault and fourth-degree sexual assault involving the woman, who was then 25 and who has cerebral palsy, mental retardation and hydrocephalus, and cannot talk or walk. The Appellate Court reversed the convictions in 2009 and ordered the lower court to acquit Fourtin because the prosecution didn’t prove the woman was “physically helpless.”

Still correct. Next:

However, physical helplessness is not a requirement for rape.

And this is where it begins to fall apart. Because, you see, Ms. Luo, it is a requirement for “rape” under the subsection he was charged with. In case you were unable to find the pertinent subsection and read it, I’ll reproduce it for you here:

(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

See, that’s all he was accused of doing. The rest of the stuff in that statute? Irrelevant. He wasn’t accused of doing any of that. So, contrary to her assertion, physically helplessness is a requirement for rape. It says so right in the statute. As I explained in my previous post, physical helplessness is a legal term of art with a very specific definition which requires that the victim be “physically unable to communicate unwillingness”. It doesn’t mean whatever else you want it to mean. It has a specific definition and we have to stick to that definition.

Further down the rabbit hole:

Although designed to protect those incapacitated by drugs or other means, physical helplessness should not have been the focus of this trial. Other factors such as the woman’s disabilities and that Fourtin was her mother’s boyfriend and occasional caregiver should have been considered.

And this is the part where we introduce Ms. Luo to the Sixth and Fourteenth Amendments to the United States Constitution, which I’m sure she’s familiar with. The Sixth Amendment to the United States Constitution states, in relevant part:

In all criminal prosecutions, the accused shall enjoy the right […] to be informed of the nature and cause of the accusation […]

The Sixth Amendment is applied to the States through the Fourteenth Amendment, which states in relevant part:

nor shall any State deprive any person of life, liberty, or property, without due process of law

What that means is that in every criminal prosecution in every state of this country, whether it be for shoplifting, murder, drunken driving or rape of a disabled woman, the State must, prior to trial, inform the accused of the specific allegations against him and the specific law which he is alleged to have broken.

In this case the law he was alleged to have broken was the one involving sexual intercourse with someone who is physically helpless. The right to have notice of the specific charges is, as the supreme court puts it, sacrosanct:

an accused in a criminal proceeding has the right to be informed of the nature and cause of the accusation against him, and that the offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at his trial; these principles of constitutional law are inveterate and sacrosanct. U.S. Const., amend. VI; Conn. Const., art. I, § 8; 2 Wharton, Criminal Procedure (12th Ed.) § 258.

State v. Sumner. We do not have a “moving target” theory of justice. We, in our quest to have a system of fairness and integrity, have mandated that we tell defendants what crime we’re accusing them of committing and then give them the opportunity to defend against just that. I cannot think of anything more fundamental to any system of justice. To argue otherwise is to argue for secrecy, kangaroo courts and a dismantling of our time-honored standard of proof beyond a reasonable doubt.

The mere mention of the idea that we can and should convict someone for something that we give them no opportunity to defend against is abhorrent. How can we be a civilized society, a fair society, the leader of the free world even, if we condone a system of justice where the only goal is to lock away people whom the populace doesn’t like regardless of whether there is any proof of the commission of those acts? What kind of world would we live in if we were to accuse someone of shoplifting a bag and upon completion of the trial, ask a jury to find him guilty of stealing a car instead?

So, no, Ms. Luo, her disabilities and the fact that he was her mother’s boyfriend and occasional caregiver should not have been considered because they have absolutely no bearing on whether she was “physically helpless”. The focus properly should have been only her physical inability to communicate. To suggest otherwise is mindboggling.

I wish it ended here, but it doesn’t:

Fourtin’s argument hinged upon the reasoning that because the 25-year-old woman could have indicated her refusal with physical resistance, the fact that she didn’t means that she consented.

This makes my brain hurt because it is preceded by a paragraph that correctly states that the statute does not care about whether a person consented or not. And yet here she makes a mess of comprehending Fourtin’s argument on appeal.

The argument, simply, once again, is that if she could have indicated her refusal physically, then she is not physically unable to indicate refusal. The State had alleged that she was physically unable to refuse. Fourtin argued that she was physically able to refuse. As Mark Bennett has often chided me: I can explain it to you, I cannot understand it for you.

The reality that the State failed to/chose not to allege a violation of a different, perhaps better fitting crime, is not something the Supreme Court should be blamed for.

You know where this is going:

Even though she had no means of verbal communication; even though there is absolutely no evidence that the woman actually gave her consent. The fact that the case didn’t focus on this question, but instead concentrated on how she didn’t show refusal, goes to show how easily society still blames the victim.

It also goes to show how easily the Court was correct and how spectacularly you have failed at understanding a simple legal issue. If the State alleges that I shot someone with a .22 handgun and presents no evidence that the object I shot with was, indeed, a .22 handgun and if, in fact, evidence is presented that it was a banana, please explain why I should be found guilty?

Due Process of Law, a principle that we should all hold dear, mandates a verdict of not guilty, just as it would for Fourtin if any Court were to suddenly, somehow, after the fact decree that he was guilty of another crime that he did not have the opportunity to defend against.

This is one of the bedrock principles of our Constitution: we do not have trials in secret, or by ambush. There is no more Star Chamber.

Ms. Luo argues that the “case didn’t focus on [the] question” of whether she actually gave any consent, not three sentences after stating that consent is not a requirement in this statute. I don’t know how else to explain this.

But perhaps Ms. Luo also missed this part of the Court’s opinion:

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[.]

Her argument in that last paragraph I quoted is a red herring born of a misunderstanding. Her verbal communication is irrelevant in this case. But even granting her that, the inescapable fact is that there was no evidence introduced that she was physically helpless at the time of the assault.

There are certainly things Fourtin may well be guilty of: sexual intercourse with someone who, due to a mental disability, is legally unable to give consent comes to mind.

But he was not accused of that crime. And as much as we dislike him and want to, we cannot now, ex post facto convict him of that.

Update: Former Chief Justice Ellen Ash Peters, who authored the opinion of the Appellate Court, says it best:

We reverse the defendant’s conviction in this case because we are not persuaded that the state produced any credible evidence that the complainant was either unconscious or so uncommunicative that she was physically incapable of manifesting to the defendant her lack of consent to sexual intercourse at the time of the alleged sexual assault. Whatever other provision of our criminal code the defendant may have violated, the state did not prove that he committed the crimes for which he was put to trial.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty.


The Constitution guarantees protection to all of us: those who have committed crimes, those who haven’t but accept that it’s possible they could and those that mistakenly believe that they never can. These treasured and trumpeted Constitutional protections do not discriminate in the shelter they provide based on how offensive the person seeking that refuge is. And it does not permit us to do so either.

We cannot alter the Constitution midstream because we don’t like someone. Today, you don’t like Fourtin. Tomorrow, the State might not like you.

Update 2: See further posts by Ken at Popehat and Scott Greenfield. Both must-reads.

Update 3: The post at BoingBoing, which caused Ken to write his at Popehat has been amended to include links to mine and his, with an acknowledgment of the different interpretation of the Court’s decision. Much credit to Xeni Jardin for doing that. HuffPost and ThinkProgress do not get any such kudos and the less said about the Hartford Courant and the CT Post, the better.

21 thoughts on “Why we can’t just make stuff up as we go along, or: Due Process

  1. Ken

    People don’t care about what the question presented to the court was, or what the legal rule was, or how it was applied. The care about how the FEEL about the general subject matter after a shallow Twitter-level read of it.

    Plus, many people probably fall back on “this is in awful person, so I support their being convicted, and I am not concerned about the details.” That used to be a stereotypically conservative position; the articles you cite here show that is no longer the case.

    This reminds me of the time that people were being OUTRAGED that a judge wasn’t letting a rape victim refer to what happened to her as “rape” on the stand. Actual, you know, LAWYERS understand that judges routinely forbid witnesses from stating legal conclusions (“he defrauded me” “he raped me” “he murdered that man”) as opposed to facts (“he shot that man” “he sold me this Rolex, but it’s fake” “he overpowered me and forced his penis into me”). I made the mistake of pointing this out. I was declared a mansplainer and rape-apologist.

    1. Gideon Post author

      I had to approve your comment. Seems this is the first time you’ve commented on this here blog, Mr. Ken at Popehat.

      If it weren’t such a fundamental issue I wouldn’t care about it so much, but most of the discussion on the internet seems to be “WELL BUT HE WAS BAD SO WHY CAN’T WE LOCK HIM UP ANYWAY?” which is a pretty spectacular civics fail.

      I do understand the strong visceral reaction that people have to this story: he did something shady and he’s getting away with “it”, but that’s no excuse for not taking a minute to really understand what happened.

      You’re talking, of course, of Torey Bowen. I remember that well. She went on to sue the judge.

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  3. greengeekgirl

    Something I don’t understand. You ding her for saying “Although designed to protect those incapacitated by drugs or other means, physical helplessness should not have been the focus of this trial” and then saying that the victim’s mental illness should have come into play, but then later say yourself, “There are certainly things Fourtin may well be guilty of: sexual intercourse with someone who, due to a mental disability, is legally unable to give consent comes to mind.” So . . . why did you gripe out Ms. Luo? I mean, I know that you assumed that she didn’t understand that wasn’t what he had been charged with–perhaps she was critiquing that he should have been otherwise charged in the beginning, rather than the state trying to nail him for the charges they did bring against him and were unable to prove. Or, perhaps she’s finding fault with the legal system in general–she certainly, as a citizen, has a right to critique it.

    I mean, on a human level, when you get down to it–if someone has sex with a mentally disabled person, who can’t give consent, that should be illegal. The man should be in jail if that happened, so, either the law is inadequate to protect the victim or the state did an inadequate job building their case against him, including charging him improperly.

    The fact that there’s a huge bugaboo about rape right now strongly indicates that there are legal problems with rape that need to be addressed. We don’t feel safe or adequately protected, which is what the law is supposed to do in a shining civilization such as ours. Instead of legal nit-picking and whining about how women get all hysterical and irrational, perhaps we could be looking at the gap between what the law does for victims and what it could or should be doing for victims.

    I don’t think it’s quite fair to discount a person’s outrage because they don’t have a lawyer’s understanding of the legal system . . . I mean, sure, that’s why we don’t make legal decisions by popular consensus, but we can be human about their feelings, and about how their feelings might reflect certain inadequacies in the handling of rape cases in general.

    1. Gideon Post author

      I say that there were other things he could’ve been guilty of because it’s true: there are other subsections of the sexual assault statute that are/were a better fit. But I recognize that it has no relevance to the offense as charged. She (Ms. Luo) has demonstrated no such ability, so I’m only left to conclude that she means that the Supreme Court should have considered her mental ability in deciding whether to reinstate his conviction for sexually abusing someone who is physically helpless. I see nothing in her opinion piece that indicates to me that she is referencing the state’s failure to charge other crimes.

      I agree with all the human sympathy. I am quite grossed out by what he did (see my previous post for all the disclaimers), but that doesn’t mean that the law is inadequate. It is very adequate, as demonstrated by Ms. Luo’s and my reference to the mental incapacity subsection.

      Here, let’s put it this way: do you think we’d be discussing this if he were charged under that mental incapacity subsection? I don’t think so. So then how is the law inadequate?

      I have no quibble with how the law is failing women in many instances, in other states and perhaps someplace in Connecticut too. My “legal nit-picking” (a term I take issue with, but that’s neither here nor there) is that people have incomprehensibly latched onto this decision to make their point. Akin’s comments? Deserving. South Dakota abortion ban? Deserving. This? Misplaced.

      I also take offense (for whatever little it’s worth) to your assertion that I’m “whining about how women get all hysterical and irrational”. Where in this post or any other do I suggest or imply that? So please stop that.

      I’m not discounting her outrage, I’m correcting her misconception and fundamental misunderstanding of our legal system, which is just as dangerous – if not more – than the perceived wrongs of this decision.

      Seriously? The complete misunderstanding of what Due Process is or why this guy can’t just be willy-nilly convicted of something else doesn’t bother you? It should.

    2. Gideon Post author

      Second response: I don’t mean to be snippy in my comment, so I’m sorry if it came across that way, but this selective fervor for rights is very right-wing. I don’t know if you’re on the left, but I am: as far left as one can go, and I believe we shouldn’t pick and choose which rights we care about and which ones we want to protect or enforce.

    3. ceanf

      the real problem is the way crimes have been convoluted by politicians whose idea of being ‘tough on crime’ consists of adding another category to an existing law and giving it a little child’s name and mandatory minimum punishment.

      the ironic thing to me, is that the people who are up in arms about this ruling are likely the exact same people who want these laws, or sub-laws, enacted. if rape were just rape, and judges or juries still controlled the punishment phase of criminal trials, the of the condition the victim irrelevant, and this guy would likely be in jail, and probably for longer than the 6 years that were over turned.

      the personal characteristics or mental state of a victim should never decide what crime a person is charged with. those factors are better left for consideration during sentencing. it is sad that this is not the case in today’s legal system.

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  5. Kenneth

    I am sure your understanding of the laws of Connecticut and U.S. Constitutional law far exceeds mine, so I will not contest your opinion that the court’s decision is correct. (Norwegian jurist here…)

    However, I do not necessarily agree with all aspects of what you seem to be arguing de lege ferenda, namely that the court should always be totally bound by the prosecution’s submissions in an indictment or ‘information’.

    First, I just want to say that I’m aware of the many differences between an adversarial and an inquisitorial system (or hybrid systems such as the Scandinavian ones), and that either system warrants different solutions to many issues, including the one at hand. Thus, it may very well be that such a rule is the best, and maybe the only, solution in Connecticut’s criminal procedure law. I do not, however, agree that this has to be a universal rule in any civilized legal system.

    I would like to point out that in Norway (and I would guess also in many other European jurisdictions), the court is not bound at all by the prosecution’s submissions when it comes to which statute the criminal act would fall under. The judge is in fact obliged to render judgement for e.g. grand theft if he concludes that that is what the evidence presented to him proves – even though the indictment only stated petty theft. There is a requirement, though, that the parties have been given the opportunity during trial to comment on any alternative classification.

    The court is of course not free to do whatever it pleases with regards to the indictment – it can only try the defendant for the same offense for which he was indicted. Now, ‘same offense’ has elements of both facts and law, and requires evaluation of more or less the same criteria as for ‘ne bis in idem’ (double jeopardy).

    I think this is a good solution. If all the elements of a crime are proven beyond reasonable doubt in the court’s view, and the parties have been given an opportunity to comment on a reclassification, there is in my view no reason why the court should not be able to render judgement just because the indictment cited a different section of the penal code.

    This also makes sense in the way that if the court finds that it is not the same offense, the prosecution is not barred (by ‘ne bis in idem’) from submitting a separate, new indictment for this offense in a new court case, allowing the defendant the necessary time to prepare his defense.

    I have to stress that I’m now commenting on the general principles of how the indictment should relate to the judgement. In the case at hand, it may very well be that the elements of any other crime he could be charged with are so different that it couldn’t be reclassified in a system such as the one I just described.

    To sum up: I agree that Ms. Luo seems to have got this case all wrong, and that any criticism should probably be directed to the prosecutor, given lex lata. On the other hand, it may also be useful to debate whether the criminal procedure may need some alterations – e.g. whether the appellate court should be able to reclassify.

    I also have a question, just to be sure: would the State be barred from pursuing this matter again citing a different section of the penal code, or would double jeopardy prevent that? (I’m guessing, taking the high-tempered debate into account, that the latter is correct.)

    1. Gideon Post author

      Thanks for the comment. My limited knowledge of the Scandinavian criminal justice system comes from the Steig Larsson novels and subsequent movie, although I do remember seeing a documentary at some point as well.

      My issue with what you describe is that in a lot of cases it would render the defense useless and leave the defendant without an opportunity to respond to the specific allegations. Take this case, for instance. The defense to the crime as charged was that she was not physically unable to communicate.

      The defense to an allegation that he had sex with someone who could not mentally consent would be vastly different. You would be, essentially, ambushing the defendant. Every person accused of a crime should be given the opportunity to respond to and defend against the allegation.

      As for the ability of an appellate or reviewing court to make that determination, it is permitted here in the United States under very limited circumstances with what we call “lesser included offenses”. Meaning that the elements of that “lesser” offense are part of the elements of the greater offense.

      A simple example would be: you are accused of stealing a car. There are two laws that apply to that, with different penalties. The first says that if you are guilty of stealing a car, you spend 60 days in jail. The second says that if you are accused of stealing a car that has a value of more than $50,000, you spent 600 days in jail. The prosecutor fails to prove the value of the car. Obviously, you cannot be guilty of the more serious punishment, but since everything else was proven – and you were defending against the rest anyway you can be found guilty of simply stealing a car and be sent to jail for 60 days. Does that make sense? But the court, after the fact, can’t say “well, the prosecutor didn’t prove that it was a car, but there was evidence that it was a motorcycle and it’s illegal to do that too, so we will convict him of that”.

      But what if there was a defense to that, such as, it wasn’t really a motorcycle or it was an abandoned motorcycle or that it was the defendant’s motorcycle? He didn’t bring any of that up because he didn’t need to, since it was obvious that a motorcycle isn’t a car.

      I hope this makes sense.

      1. Kenneth

        For some reason, I didn’t see your reply until now… Thanks though!

        As for the Law According to Stieg Larsson, I wouldn’t try to synthesize the fundamental principles of Swedish (or Scandi) law from his novels, but I guess you knew that already… I was so disappointed by the third book – the trial was just gibberish and legal nonsense. I really hoped he would have done more thorough research…

        But I digress… It’s interesting what you write about “lesser included offenses”. This makes sense on the appellate level. Your appellate system is very different from ours in that the Appellate Court only reviews Superior Court decisions, whereas an appeal in Norway would result in a completely new trial before an appellate court. Thus, the CT Appellate Court would of course not be able to substitute the offense, as this would require new evidence to be submitted, save for the “lesser included offenses”.

        But would the prosecution be able to change the indictment during trial in the Superior Court? Similarly, would the judge be able to ask the parties to present arguments in relation to another offense – which he or she is considering with a view to possibly convicting for that offense instead?

        I forgot to mention in my last comment that if a Norwegian court (or the prosecution) would like to do this, the judge is required to hear arguments from both parties regarding the “alternative” offense, and to grant a stay if it is deemed necessary for a proper defense. Failure by the court to observe these rules would constitute a procedural error and almost invariably lead to the final ruling being overturned.

        It seems we just have different methods of protecting the right of effective confrontation. I guess the Norwegian way is substantially more time- and resource-consuming, but I guess it is believed to yield more factually correct rulings. Whether this actually holds true, is probably only for the gods to know…

    2. Gideon Post author

      You are correct that double jeopardy would prevent them from retrying him. I think. Never trust a lawyer who gives you a definitive answer.

      1. Jane Shevtsov

        Hang on. Double jeopardy means you can’t be tried twice for the same crime. But if the crimes are so different that reclassification is impossible, how are they the same crime? If your trial for auto theft uncovers that you stole a motorcycle, can’t you be tried for stealing the motorcycle?

        1. Gideon Post author

          You’re conflating the examples. In the example, he could be tried for theft of a motorcycle. In this case, it was a different theory, for the same act. He can’t be tried again for that same act.

          1. Jane Shevtsov

            Not conflating them at all. If the case in question can’t be reclassified under a more appropriate statute because the crimes are too different but still can’t be retried because of double jeopardy because the crimes are too similar, that creates a weird gray area, doesn’t it?

        2. Gideon Post author

          No, you’re still missing the point, I think. The point is that you can’t after the trial suddenly move the target and change the theory of the crime. The act remains the same, but the state gets one shot to prove that the act committed was criminal.

  6. Nullifidian

    Thank you for this series of posts.

    As a leftist myself, I think self-identified leftists and progressives should embrace this decision (which is obviously distinct from embracing Fourtin or what he did—something these A-list blogs like Wonkette and liberal news sites like HuffPo don’t seem to understand). Historically, the primary victims of the “throw every statute at them at see what sticks” form of prosecution have been political activists, and this tactic goes back for decades. For example, the White House pickets by members of the National Woman’s Party*, founded by Alice Paul and Lucy Burns to agitate for an amendment enfranchising women, were disrupted by arrests and charges for “obstructing traffic”. But even in that case, what they were arraigned for and what they were tried for was the same charge. If at once we instituted the policy that it was OK for a prosecutor to argue a completely different charge in trial than the one filed, how long would it be before anti-globalization activists, environmental activists, civil rights activists, and other thorns in the side of business and the state would be convicted under this new legal theory? I’ve seen enough of the power of the state not to wish them another legal cudgel to hit people with, and if that means that I have to see a rapist get released, then so be it. I don’t like it, but I can see that it’s necessary.

    *I couldn’t mention the NWP and Alice Paul and Lucy Burns without pointing out that there’s an excellent made-for-cable film of their struggle called Iron-Jawed Angels. I highly recommend it if you haven’t seen it.

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