[This is Part One of a 2-part series of posts on just how ineffectual the legislature is at fixing statutes. Part Two will come later.]
Remember State v. Richard Fourtin? Of course you do. Back in October 2012, the Connecticut Supreme Court issued a decision reversing the conviction of a man for sexual assault, holding that the definition of “physically helpless” in the statute was very specific and the State did not meet its burden. Remember the ensuing assault on Due Process that followed?
I said then that this is an area that must be tread lightly upon. Mental illnesses are on a scale and people with mental illnesses have rights, too. I suspected that the legislature would take up a bill to “fix” the problem.
I shouldn’t have been surprised that it did this. The bill does two things. First, it amends the definition of “physically helpless” include a person who is:
(A) unconscious, or (B) for any other reason, is physically unable to resist an act of sexual intercourse or sexual contact or to communicate unwillingness to an act of sexual intercourse or sexual contact.
This change is fine by me. It seems a bit unnecessary because, in my opinion, this scenario is covered by other subsections, but whatever. If only they’d stopped at this one change.
The bill also removes the offensive “mentally defective” and replaces it with “impaired because of mental disability or disease”.
The latter is certainly more specific than “mentally defective” but immensely more problematic, as I’ll explain in a second. To get there, though, we need to look at one more change the legislature is proposing: the deletion of the definition of “mentally defective”:
[(4) “Mentally defective” means that a person suffers from a mental disease or defect which renders such person incapable of appraising the nature of such person’s conduct.]
This definition, while using terms that may be offensive to those with mental diseases, also gave guidance to individuals and courts on the conduct that was prohibited. It said, in essence, that you cannot have sexual intercourse with someone who doesn’t understand what they’re doing.
But this deleted subsection hasn’t been replaced with a definition of “impaired because of mental disability or disease”. So now the statute would read:
(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (2) such other person is impaired because of mental disability or disease to the extent that such other person is unable to consent to such sexual intercourse;
Right off the bat, actual consent is irrelevant. So the only question is whether the person who is the “victim” can or cannot legally consent.
How is this any different than the scenario that prompted Kortner v. Martise, the civil suit in which the mother of a disabled woman has sued a guy she dated?
This is where the problems begin. How do you define mentally impaired? Who defines mentally impaired? A jury? Their caregivers? A prosecutor?
I can imagine that there is nowhere near any consensus in the medical community as to a bright line rule on consent. This isn’t an historical fact, like age, where we’ve made an arbitrary cutoff for consent. That’s easy to solve: are you 16? Yes, then you can consent. Are you under 16? Then it doesn’t matter, we’re saying you cannot.
How about someone with mild schizophrenia or borderline personality disorder or vertigo or seasonal affective disorder? Is every case then dependent on a battle of experts?
Are private individuals like you and me now the arbiters of determining whether the person is so impaired that they cannot legally consent? How is this not a wide net that will ensnare far too many?
And what if two doctors don’t agree? What if a doctor finds that the person is impaired, but the facts also show that the person did, in fact, consent? How far does the nanny state go? You may have consented but we are saying you’re not capable of consenting? Does this infringe on the fundamental right to sexual congress?
I don’t know the answers to any of these questions, but clearly, this proposed “solution” is creating more of them. That can’t be good.