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