[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;