The Shared Failures of CT v. Fourtin

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The tenets of Connecticut’s Judicial Branch are noticeably absent from their recent ruling in the Fourtin case, in our opinion.

Some of our readers may be wondering why we’ve written so much in the last few days about Connecticut v. Fourtin, the case in which the Connecticut State Supreme Court overturned the conviction of a man charged with raping a severely mentally and physically disabled woman. While the case is obviously horrific.. some of you may still be wondering “Aren’t you guys a politics page? Aren’t we five weeks before a big election? Why are you spending so much time posting about one case?”

To that, we say: Yes, we are primarily a page about politics and activism. Yes, we are now less than five weeks before what is probably one of the most important elections in recent memory. So why aren’t we posting about polls, debates, trumpeting the achievements of the candidates we support, and highlighting their promises and platforms? Why would we take so much time to focus on a single case in Connecticut?

Because, to put it bluntly, five weeks before an election is perhaps the most important time to focus on Fourtin. Fourtin is not about campaign promises, achievements, polls and puffery. Connecticut v. Fourtin is about failure. It is our impassioned opinion that the four Supreme Court justices who decided the ruling in this case failed in their duties. And, in many ways, we all share in that failure.

As my co-admin pointed our in her earlier commentary, the ruling hinged on whether the alleged victim in this case was truly “physically helpless” – a term taken directly from the sexual assault statute – and was therefore unable to fight back against her alleged attacker. There is long discussion about the fact that the alleged victim had, in previous instances been able to voice her displeasure with people, food, and other things by groaning and crying, and perhaps kicking, even though she did not have much ability to move. The Justices concluded that since she apparently had this limited ability to refuse some things, she could have communicated her refusal to have sex with the defendant. Since she did not, the sex was consensual, not rape. I know, I know, stay with me here…

Let’s take a look at what else the Connecticut statute says about the charges of sexual assault the defendant faced in this case:

(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than three years older than such other person; or (2) such other person is mentally defective to the extent that such other person is unable to consent to such sexual intercourse; or (3) such other person is physically helpless; or (4) such other person is less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare;…

Therefore, the question that we and most observers of this case have after reading the statute is this: why did the Justices hang so much of their ruling on whether the victim was “physically helpless” when, it is clear that with her diminished mental capacity, she was clearly “unable to consent to such sexual intercourse”? She had no more knowledge of sexual acts, her own body’s reproductive organs, or her role in such as act than a typical toddler. Why is it assumed that she could have bitten, kicked, or screamed to stop the act? Is it not just as easy to assume that, much like many young children do in such situations, that she froze with fear? Or froze with shock and confusion at what was happening?

Granted, we are not attorneys and we welcome those readers who are attorneys to weigh in what seems to be a clear problem in applying Connecticut’s existing law. One possible reason that has been offered by some readers is that the prosecution may have written the charges in such a way that rendered the Court unable to consider the victim’s mental capacity. We have not seen that confirmed in our readings but if it is true, it’s an egregious failure, as well. One that the prosecutor should publicly acknowledge.

The larger failure is that the alleged crime in Fourtin is by no means an isolated incident. Far from it. According to the U.S. Department of Justice,

the rate of violent crime against disabled persons is significantly higher than for non-disabled persons: the age-adjusted rate of violent crime against persons with disabilities (28 violent victimizations per 1,000 persons) was higher than the rate for persons without disabilities (15 violent victimizations per 1,000 persons).

In 2010, this amounted to 34,750 reported sexual assaults committed against persons with mental and/or physical disabilities. This data does not even include crimes committed against disabled persons living adult correctional facilities, nursing facilities, or patient hospice facilities, which very often go unreported.

What does this mean? It means that we are failing, as a society, to protect the people who have the least ability to protect themselves from violent and/or sexual crimes. The people who most rely on others for their basic needs cannot be assured that these others will be prevented from abusing them. The public was rightly outraged at Jerry Sandusky’s sexual assaults against children and that case made international headlines, for many good reasons. Yet disabled people, who are no more capable of defending themselves against abusers than Sandusky’s victims, are abused on a massive scale and there are only a few headlines. (Even the media coverage of Fourtin amounts to a few short stories, buried beneath election analysis and football scores on news sites. Social media has magnified the reaction to the case but the initial media coverage was actually quite small.)

And now, a state appellate court has effectively set the bar higher for mentally and physically disabled persons to face their abusers in courts of law. They need to prove that they fought back “enough” or resisted “enough” for the abuser to know that they didn’t want something they may not even understand. Otherwise, it’s assumed that they do want their bodies used in whatever way someone else deems fit. Does this not make the default state of a disabled person’s body one that is, essentially, at the mercy or will of others? This a state that family members of the disabled live in constant fear of, and yet now it seems like the Connecticut Supreme Court has set that state as legal precedent.

Much like Penn State, the Catholic Church, the Boy Scouts of America and other organizations’ failure to report crimes against children led to scores of more incidents of abuse, the systematic failures in Fourtin and cases like it may well lead to more incidents of crime against disabled persons. More incidents that will go unpunished by the justice system and by society.

Setting the bar of legal protection at different levels for different groups of citizens, forcing victims to prove they resisted acts they cannot even understand – this is not the country we claim to be when we trumpet our achievements to the world. But when we tolerate systematic failures such as Fourtin and the abuse against our most vulnerable, it is country we become. We say we are better than this. Now it’s time we proved it.

To learn more about rape laws in your state, and what, if any safeguards there are for people with mental and physical disabilities, visit the Rape, Abuse, and Incest National Network.

If your state does not have specific statutes protecting disabled persons from abuse, contact your legislators about adding them in their next session. They can do it and they should do it.

We can all start with Connecticut:

Connecticut State Capitol and Legislative Office Building:
300 Capitol Avenue, Room 5100
Hartford, CT 06106
(860) 240-0100

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Author: womenriseupnow

An awareness and mobilization site designed to fight back against recent attacks against womens' rights.

7 thoughts on “The Shared Failures of CT v. Fourtin

  1. Pingback: State of Connecticut v. Fourtin «

  2. So, as I said in the comments to my post in response to someone from here who asked some questions, I wanted to clarify a few things (I’m going to forgo the usual disclaimer that I don’t condone this behavior because hopefully we’re beyond that and can have an intelligent conversation):

    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 something else 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. I hope this clarifies some things and I’m happy to engage in a civil discussion about this.

    11. Just FYI – that “intellectual capacity of a three year old” quote is non-existent. It is not in either the majority or dissenting opinion.

    • Thanks Gideon. We appreciate your comments as well as the ones of others who have posted here in response to our posts. Our understanding of this case continues to evolve as more facts about the case come to light and our understanding of the workings of the law continues to improve. As mentioned in our posts and on our Facebook page, we are not lawyers, so we have been trying to get a clearer sense of what is actually happened here. The widespread opinion on this among any lawyers we have spoken to seems to be that this decision was the result of a bungle on the part of the prosecution.

      We are not in any way advocating mob justice, as Jeff’s post below seems to suggest; we would, at this point, simply like to see things like this not happen again. We understand that Fourtin cannot be tried again for this, nor would we expect that. However, there are many, many disabled people in this country, and their caregivers, for whom this decision is more than just a mere abstraction.

      From our perspective, there does seem to be some room to misuse the “physically helpless” subsection of the statute. The majority opinion itself cites a previous case in which a woman was strapped to a gurney and was unable to move, but she was conscious and told the defendant to stop, and because the case was tried under the “physically helpless” statute, he was acquitted on that count because she was in fact able to communicate her lack of consent. I don’t know Connecticut law well enough to know what the prosecution should have used instead, but it seems to me that there is some room to misunderstand what you have to actually prove if you are going to use it.

      • I thought for a long time about how to respond to the latter part of your comment – and it’s been a bit of a struggle. Because this question wades into the territory that I explicitly avoided in my post: and that is the right of people who are severely disabled – mentally and physically – to engage in normal adult sex lives.

        But let’s start at the beginning: what circumstance do you envision that is not covered by any of the subsections of the statute?

        The previous case that you mention was also, in my opinion, correctly decided because the issue is “physically unable to communicate” and by say “no”, she clearly communicated. I don’t know why in that case the prosecutor again chose to pursue this strange and limited “physical helplessness” charge, but they did.

        But other than situations where people are akin to being unconscious, use of this subsection is wrong.

        And if we talk about people who have mental disabilities but can communicate, at what point do we determine that their right to consent – or not – is something that society deems irrelevant because we decree that they should not have sex? Isn’t that – taken to an extreme – a form of forced sterilization?

        It’s complicated and I don’t know the answers.

    • As for the “physically helpless” subsection, you’ve confirmed what I suspected which was that it really only can be applied to someone unconscious or drugged beyond the capacity to move or express themselves. I understand what the requirements of that statute are at this point, I think. This is sort of the point at which I struggle to know what the next step would be or how one could improve the law. I only can tell you that it seems insane to me that you can prove that a defendant did sexually assault someone, and in the latter case I mentioned, you can show that the victim did not give consent, yet you cannot convict because of this weirdly narrow definition of physically helpless. Why it hinges on the person’s ability to communicate rather than their ability to physically resist is the part that may be hanging me (and others) up. I understand that there are other statutes that might be more appropriate. Maybe the answer is that people need to be better informed as to what those are.

      With regard to the question of the mentally disabled and having normal adult sex lives… Mental disabilities vary from one person to the next, particularly with something like autism where the individual may have genius in one area but be severely lacking in another to the point that they are like infants in certain ways. And as they grow up, you find yourself dealing more and more with the push-pull of their body being biologically ready for things that their minds are not. One thing I can tell you though, that seems to be nearly universal with many types of mental disabilities, including cerebral palsy which the victim had in Fourtin, is that while it is possible to involve them in lots of age appropriate activities, in many cases, you have to build a scaffold around it in order for them to participate in it, so to speak. You need to do things to prepare them before hand, you need to take your best guess at whether the preparation you’ve done is enough, and you need to have contingency plans in case the thing (whatever it may be) doesn’t pan out, or else the experience can be traumatic and you may have to wait a long time before you can try again (if ever). I can’t imagine that sex would be any different. Anyone who is a caregiver would likely agree with this.

      It’s why I have a hard time with the idea that what Fourtin did is just some creepy predilection he has that society finds icky. The woman in question was traumatized, that’s how it came to light that this had happened in the first place.

  3. “Therefore, the question that we and most observers of this case have after reading the statute is this: why did the Justices hang so much of their ruling on whether the victim was “physically helpless””

    Because that was the subsection of the statute (3) that the prosecutor charged him under. He was not charged under subsection 2, the “mentally defective” one. If you want to be mad, be mad at the incompetent prosecutor. The court decided the case correctly. (Unless you don’t believe in due process, and think the government should just be allowed to make it up as they go along when it comes to criminal prosecution.)

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