We have been moving forward in our efforts to understand the Fourtin case and how something like this happens under the current justice system. Outrage can be effective for getting things done, but it’s important that we are responsible in directing it to the right places. In digging further into the details of the case and the workings of the law, we’d like to share what we’ve learned, and what we feel may be the best way to move forward in terms of minimizing the instances of it happening again.
First, Richard Fourtin cannot be tried again for this crime. It would appear that double jeopardy prevents that. The likelihood of this getting elevated to the U.S. Supreme Court seems fairly slim. The prosecution in this case has made a motion to have the Connecticut Supreme Court reconsider its verdict, which they may or may not grant, due to the public outrage that has been in part supported by this page. In discussing this issue with a number of attorneys and others familiar with the law, it appears that the Justices ruled in accordance with the law and the error most likely lies with the prosecution. We’ll explain:
The statutes for second-degree assault and fourth degree assault both contain a number of subsections each. Both contain a provision for assaulting with a mentally disabled person (specifically, *just* mentally disabled, not physically), as well as the now infamous “physically helpless” subsection. It’s anyone’s guess as to why, but the prosecution chose to go with the “physically helpless” provision rather than the one dealing with the victim’s mental disability, and therein lies the problem.
You don’t simply charge someone with second-degree assault, you charge them with a specific subsection of the statute. It is sort of stratification, if you will, intended (we suppose) to clarify the nature of the assault. But –and here’s the part that is hanging up a lot of people- even if evidence is presented during the trial that indicates the defendant might be guilty under a different subsection of the law… if that’s not what he’s being charged with, the prosecution is out of luck. He’s supposed to have a reasonable chance to defend himself against what he’s specifically being charged with. That’s due process, as we understand it.
“Physically helpless” under Connecticut law as it stands is really defined so narrowly that it would seem to only apply to someone who is unconscious or drugged to the point of being unable to speak or move, and therefore is unable to communicate resistance to their attacker. We aren’t sure why the statute doesn’t simply say “unconscious” or something similar to avoid confusion and misuse of the statute, but that’s another story. Often the law is written in intentionally vague ways to allow for circumstances that those writing it may not foresee. It’s an acknowledgement that those writing the law cannot predict everything. However, it’s worth noting that misuse of this statute is actually not unprecedented; in the majority opinion they actually mention another case in which a victim was strapped to a gurney but conscious during her assault and actually voiced to her attacker that she wanted him to stop, however, they could not convict on this count, because they were charging with the “physically helpless” subsection – which as it turns out, boils down to assaulting someone who cannot communicate. It does not, as has been previously stated here and elsewhere, indicate the degree of resistance that the victim did or didn’t offer.
Now, there’s a lot of information about this case that we do not have. We have not pored over hours of court transcripts. We discovered, though, in reading the majority opinion, that in fact, as much as the victim’s ability to move were limited, that she did have methods at her disposal of communicating dissent. Kicking, biting, scratching, screeching, and so forth, were things she was able to do in order to communicate resistance to an assault. It would appear that whether she actually did these things or not is, under this very peculiar statute, beside the point. I know, I know, but listen: the law is not looking, in this case, for whether someone did or didn’t consent, merely whether they were physically capable of doing so or not. And if someone is assaulting a person who is capable of communicating, it’s not assaulting a “physically helpless person,” as defined by the law under which Fourtin was being charged.
While it has been correctly pointed out in other blogs (including this good one by public defender Gideon) that the statement of the victim having the mental capacity of a three year old is not mentioned anywhere in the opinion, it seems clear from additional reading on his and other sites that she had certain skill areas which did fit that description, and certainly not much above first or second grade level in even the strongest of her skill areas. It has been mentioned that she had nothing in the way of sex education. While it may be overly facile to say she had the “mental capacity of a three year old”, it is more than adequate even in the opinions as written, to say that she was still not what anyone would consider an adult in the sense that we understand it, nor adequately prepared in any manner for sexual intercourse; the Justices in fact did not understand why the prosecution chose to pursue a conviction under the physically helpless part of the statute rather than the mental disability portion.
We have seen a great deal of traffic and interest in this issue. We are grateful for that, but we also want to be clear that we are trying to handle this issue in a responsible way. Is it madness that someone can commit an assault, that there is ample evidence to show as much, and yet the perpetrator can walk away because of a prosecutorial mistake? Yes. What can be done about it? Regardless of whether the prosecution in this case is successful in its quest to get the court to reconsider its decision, our problem remains – what to do, to keep this from happening again? Where to direct the energies of reasonable outrage about it?
We do not suggest reaching out to the justices further. If they decide to overturn their own verdict, that is their choice, and perhaps they can find another way to interpret the statute that will allow them to do so. But this is unfortunately the law working to deliver a verdict which, as we’ve talked about elsewhere, is unfair, but is legally just. We also do not advocate seeking out the prosecutor to give them a piece of your mind: they are already doing everything they can do to right this mistake. A public statement from their office explaining their choice to prosecute under that particular statute would be nice, but we feel would offer little in terms of concrete benefit to future victims.
We suggest starting with the Governor’s office. Ask him to lean on the legislature to either expand the physically helpless statute (in light of its seeming repeated misuse), or else create a specific statute to deal with assaulting the disabled. We may also suggest that if you are in the State of Connecticut, that you reach out to your local legislators as well. We wish there were more that could be done. We wish there a way to affect the Fourtin decision but barring the Court agreeing to reconsider its verdict and ultimately overturn it, it appears that there’s nothing more that can be done on this terrible case.
Reach out to the governor here:
Governor Dannel P. Malloy
210 Capitol Avenue
Hartford, CT 06106
Tel: (860) 566-4840
Toll-Free: (800) 406-1527
TDD: (860) 524-7397
Fax: (860) 524-7395
If you don’t know your local state representatives, you can look them up here: