Circled here: L, Justice McLachlan; Center bottom, Chief Justice Rogers; Center top, Justice Zarella; R, Justice Palmer
Normally there’d be some humorous graphic at the top of this article. But this shit ain’t funny. Take a look at these four faces, you may want to punch them by the time you’re done reading (we do not advocate violence, but if there were going to be a time, this would be it).
By now many of you have seen the articles on the atrocious Connecticut State Supreme Court decision to overturn the conviction of Richard Fourtin, the man accused of raping a physically disabled woman. In a 4-3 ruling, they decided that the victim, a woman with cerebral palsy who can barely move, cannot speak, and is severely mentally disabled, did not put up enough of a fight to indicate that the sex that occurred was not consensual.
This is a difficult thing to write about in a rational manner without things deteriorating into incoherent swearing and calling down the wrath of ancient, forgotten gods against the justices who voted to overturn this conviction. I am the parent of an autistic child who at the age of five, is barely verbal and incapable of communicating simple facts about what happened in kindergarten that day. This crime, and the subsequent ruling to overturn the conviction, is the stuff of my nightmares and those of anyone who has a loved one with a serious disability.
If the reason for overturning this conviction came in the form of new forensic evidence exonerating Fourtin or some other new information that cast doubt on his involvement or something along those lines, it would simply be justice served. But the reason that the justices gave for overturning the conviction was that the victim did not qualify under the law as “physically helpless.”
That’s right. I couldn’t make this up if I tried.
If you feel like reading the ruling opinion, you can. It spends several pages dissecting the legalistic definition of “physically helpless” and apparently, being completely nonverbal (relying on grunting and occasional use of a communication board), and having an extremely limited ability to move due to cerebral palsy, does not, in these judges’ minds, qualify as “physically helpless” because she could have screeched, bitten, kicked, or scratched to communicate that she did not want sex. These are the same justices, by the way, who sat through four days of the victim’s laborious testimony watching her slowly and painfully use her one working finger to respond to questions with her communication board. They watched this testimony and concluded she could have really put up more of a fight.
‘‘It is apparent that the physical helplessness contemplated by the statute requires more than a disease causing physical paralysis.’’
Again, I couldn’t make this up if I tried. See, what the judges are looking for here is a “physical inability to communicate unwillingness.” The not-so-subtle bigotry here is, “we presume that women always want sex, unless it’s proven otherwise.” (Three of the Connecticut Supreme Court Justices dissented, their opinion can be read here.)
Never mind that it has been indicated that the victim had never received any type of sex education in her life, and indeed would not have been likely to get much out of it if she had, since she was determined to have the mental capacity of a 3 year old. It’s extremely unlikely that she fully understood what was happening to her. That makes it no less a crime.
One wonders whether these “justices” have ever spent a moment contemplating the reasons why it is illegal for an adult to have sex a 3 year old. Yes, it is physically unsafe for the child, it can do terrible harm to their bodies. But it is also more than slightly traumatic and emotionally damaging. A three year old inherently lacks the emotional, maturational, and cognitive development to understand or to consent to this type of sexual activity. It is an abuse of power of the worst kind. Anyone with half a brain and a remotely developed sense of outrage ought to be able to string that thought together. Simply because this woman’s body was adult, she is subject to the same expectations of proving she tried to resist Fourtin’s unwanted advances, regardless of the fact that she lacked the capacity to understand what was happening to her, much less give anything resembling actual consent. This would be an unreasonable expectation if the victim were only mentally disabled, and in the case of this victim’s added extreme physical disability, it defies reason.
The mentally and physically disabled in America are disproportionately the victims of physical and sexual abuse (see my co-admin’s article exploring these statistics further). This ruling will do nothing to alleviate that, or make it easier for people who work with disabled victims to help seek justice for them.
These justices ought to be ashamed of themselves. We plan to tell them so. We’ve found that the Connecticut Supreme Court keeps their Justices’ contact information fairly tightly guarded, but since we are ninjas we got two of the justices’ phone numbers who voted to overturn this conviction. We suggest you give these folks a call, or if you get stage fright on the telephone, drop them a letter and tell them they should be ashamed of their decision in State v. Fourtin:
Chief Justice Chase T. Rogers
860-713-2192
Justice Richard N. Palmer
860-757-2115
Supreme Court Buliding
231 Capitol Avenue
Hartford, CT 06106
womenriseupnow.wordpress.com 
October 5, 2012 at 8:04 pm
This is beyond my ability to comprehend. How can they justify their actions? have they even seen the victim? this makes me sick to my stomach, scared, sad, and mad with anger….like a dog gone mad. Tell me, besides the obvious…..what can I do?
October 5, 2012 at 8:09 pm
While we have supplied contact information for two of the Justices in question so that folks can express their outrage, we are considering other actions which we will need our audience to join us on. Please follow our Facebook page if you don’t already.
October 5, 2012 at 8:17 pm
What can we do this is a crime, I mean really a crime it’s self! are these people accountable to no one? Is this where our country is going? GOD HELP US!
October 5, 2012 at 10:37 pm
Insane!
October 5, 2012 at 11:12 pm
Sick republican judges just like Todd Atkins and the others who love and fascinate about rape.
October 5, 2012 at 11:27 pm
more and more our country is slipping backwards. This is the type of thinking that was popular even up until the ’70s. If a person was mentally challenged, they were put away in asylums and such to live their lives where they could remain somebody’s “dirty little secret.” If they also had a physical disability, forget it. They were propped in a corner and totally forgotten.
I am more than just appalled by these so called Justices decision. Anyone with an ounce of compassion and morality, KNOWS that this is a gross mis-justice!
Whatever actions that need to be taken to hold these “people” accountable, I’m in on! In my eyes they are as guilty as the accused of raping this woman!
October 5, 2012 at 11:49 pm
number rings and rings with no voicemail
October 5, 2012 at 11:51 pm
The rule of law in this instance is pretty explicit. The state prosecutor charged the defendant with a specific criminal code violation and then failed to meet the burden of proof on that violation. I read the case, and it was established by several people who knew the victim that the victim had the ability to kick, scratch, and bite when she was displeased: the specific code that the prosecutor charged on required the legal definition of physical helplessness to be fulfilled… not the ordinary definition of it. The Supreme Court of CT, in this instance, dissected the application of the legal term “physical helplessness” as it has been defined in law texts, code, and by precedent. If you read all 19 pages of the opinion, you can see where the prosecutor messed this case up… the only mention by the prosecutor that the victim was physically helpless was that she was physically reliant on others; but witnesses (family and caregivers) testified that there was an established pattern that the victim was able to express that she didn’t want to do something… so according to the legal definition of physical helplessness as defined in the criminal charge, she was able to communicate in some manner.
October 6, 2012 at 1:45 am
While this is an incredibly emotional issue for all involved, including the moderators of this page, we feel it is important that we not turn on one another.
Danielle, you seem to have some familiarity with the law here. We have researched the statute for second degree assault and it does include language encompassing someone with a mental disability, which this victim would seem to qualify for. Can you offer any clarity on why the case might have been hinged on the physical helplessness rather than the mental disability?
October 6, 2012 at 1:18 am
Danielle – if you seriously believe that a woman who has the mental age of a 3 year old can ‘consent’ to sex, and that because she didn’t, apparently, cause physical harm to a man who was bigger, stronger, and *physically able* to control her dysfunctional body, than you are as mired in rape culture and willful ignorance as these grotesque judges are.
October 6, 2012 at 3:59 am
Tabaqui, brilliantly put & I congratulate you on your composure. I don’t have that right now, because I am too filled with rage & disgust.
October 6, 2012 at 3:08 pm
Tabaqui, we can’t overstate the importance of not allowing our emotions to cause us to turn on each other. In reading Danielle’s post, we don’t feel that she was endorsing the Justice’s decision, merely trying to explain it from the purely legalistic perspective. It is our opinion, and we have written about this before on this blog, that conservative judges tend toward the strict “letter of the law” approach to justice, which often yield verdicts that may be unfair, even if they are “technically just”.
It may be that Danielle is correct in suggesting that the victim may not have met the narrow legal definition the justices were seeking in terms of being “physically helpless,” however, CT’s statute for second degree assault clearly contains a provision for a victim who is mentally incapable of consenting, and the victim clearly seems to meet that requirement. We don’t have enough specific information about how the prosecution presented their case to understand whether it chose not to address that provision and hang its case entirely on the physically helpless portion. We are trying to learn more and will report back to you when we do.
October 6, 2012 at 4:08 am
I am truly disgusted. And Danielle, anyone who can defend the justices for overturing that ruling is without any moral code. That victim has the mental capacity of a 3 year old and no real control over her body. If she did have the reactions that were mentioned, such as biting, etc., that’s all they are…conditioned reactions. She had no idea what was happening or how to react to it because nobody was ever sick enough to try that before. Instead of demonizing the victim, try putting the blame where it belongs and that’s on the predator! That’s all that so-called man is. If he went that far with her, I can guarantee that wasn’t his first victim. Would you leave your 3 year old daughter alone with him? Would any of the justices? We treat the criminals better than the victims sometimes and, I’m sorry, but that’s not how it should be.
October 6, 2012 at 5:17 am
I understand that judges are supposed to rule on what the law says. But there should be some lee-way for situations like this where, apparently, the prosecutor pushed the wrong charge. They should be able to say “Yes, she was physically capable of showing disagreement; however, given the facts of the whole situation, we do not overturn the conviction.”
Pingback: The Shared Failures of CT v. Fourtin «
October 9, 2012 at 5:44 am
While this is, what I would term as a “women’s issue” since they have so much at stake. But as a man who is insulted at even the thought of men who live by a code that places women at their disposal to satisfy their every need, I am disgusted more than I can find words to express. Have the so-called “Judges” ever heard of an emotion termed “shock”? What is happening to this country? Are we returning to a time in our past where we placed women in a lower class position? Recent unbelievable statements such as saying that the female body is capable of rejecting unwanted sperm as a form of birth control, and that women can choose to be sexually active because they can always turn to an abortion as a control method. I have yet to ever meet anyone involved with a abortion who was thrilled with the experience.
I don’t know what I would have done had I been put in a situation where I would have have to make a choice; but I do know I would hate to see us return to the days before it was legalized. In some cases it was in some filthy kitchen or bedroom, preformed by someone who had little, or no, medical background. Those situations, like this decision, can only be classified as one thing, “barbaric”! We can only keep up the pressure on the prosecutor and the state to correct this ruling and bring justice for all of us, but first and foremost for the victim. To those who live in area, please continue to keep awareness alive and the pressure on!!!!
October 10, 2012 at 2:27 pm
Justice Rogers is about to become an acquaintance of mine.
October 10, 2012 at 3:21 pm
here, this is put more eloquently than I could place in this limited space.
http://www.popehat.com/2012/10/09/frankly-i-dont-care-how-due-process-makes-you-feel/
March 30, 2013 at 4:55 pm
No response from Danielle. Interesting. So, like conservative judges, who frequently hide behind specifics to mask a general tendency to vindicate the powerful and punish victims, once she had her reason to dismiss the victim, there wasn’t any need for further discussion. Mostly likely, the discussion is conveniently over.