The Shared Failures of CT v. Fourtin

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


State of Connecticut v. Fourtin

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

Justice Richard N. Palmer

Supreme Court Buliding
231 Capitol Avenue
Hartford, CT 06106

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We’ve tried to assemble as many resources as we could in one place…. Our “Vote Like A Girl Guide” is chock full of active links to check out your state’s voter ID laws, the records of your representatives, and what to do if you get turned away at the polls.  It also contains a printable Get Out the Vote poster, voter registration forms, and download links to some nifty swag that we created just for this!


So go download it, check it out, share it, hang the poster, get your friends to vote… Just do it!



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This Week In Why We Need to $%!^@*# Vote – October 1st Edition

Welcome back, people. It’s your weekly round-up of stupid crap politicians have said and done trying to get elected, reminding you of the urgent need to vote for whomever is running against them. As you may already know, one particularly misogynistic lawmaker tried to run away with all five slots this week but we’re not going to to let him. He does, however, grab three of them.

This photo of Todd Akin and an awesomely placed sign are courtesy of bloggingwhileblue.com, a great blog run by some equally awesome Georgia Democrats.

“She had a confidence and was much more ladylike [in 2006], but in the debate on Friday she came out swinging, and I think that’s because she feels threatened.” -Republican U.S. Senate Candidate Todd Akin, from Missouri

But wait, he’s not done… Still discussing Democrat Claire McCaskill’s debate stance, he said:

“The first two minutes, wow, it’s like somebody let a wildcat out of the cage,”

All together now… “Ladylike?” “Wildcat?  *facepalm*
He really doesn’t see how sexist and condescending that is, does he? You’d think that after insulting rape victims all over the planet and becoming his party’s poster boy for the war on women (and that’s REALLY saying something in today’s GOP), someone would have given him a big book titled “Shit Not to Say So As Not to Look Like More of a Misogynistic Jerk” and told him to read it! Perhaps they did and he just fed it into his TelePromptr?
The icing on the Akin Turd-Cake this week came in the form of a video released by the McCaskill camp (Internet videos, the gift that just keeps on giving). In it, Akin is responding to a constituent question about equal pay and he says:

I believe in free enterprise. I don’t think the government should be telling people what you pay and what you don’t pay. I think it’s about freedom. If someone what’s to hire somebody and they agree on a salary, that’s fine, however it wants to work. So, the government sticking its nose into all kinds of things has gotten us into huge trouble.

The question was about the Lilly Ledbetter Fair Pay act so it’s only natural that most news outlets reported that Akin’s response suggests he is not is favor of laws mandating equal pay for women. In reading Akin’s comments, however, my conclusion is that he believes “free enterprise” means that the government shouldn’t be able to set any guidelines for pay. At all.  How about that minimum wage and those laws that say you can’t pay people of different races and religions different salaries? Are those causing “huge trouble” too? And now that the RNC  and party leadership love him again, do they support all of his views?

The Takeaway: Missouri voters, are you kidding us with this? Vote Claire McCaskill for Senate.

“One of the principles is that we need to support people who have a history and know what it is like to sign the front of a paycheck, not the back of a paycheck. The front of a paycheck also includes you took a risk and you build a business on your own — without the federal government standing next to you as you’re signing a personal guarantee. It’s just you and your wife and your banker; you know that’s it.”-Republican Congressman Mike Fitzpatrick, from Pennsylvania’s 8th District

Another week, another video, this time it’s one of Pennsylvania Congressman Mike Fitzpatrick following Romney’s lead and writing off over half his constituency when meeting with the Kitchen Table Patriots, a Tea Party group. Indeed, it didn’t take long for analysts to dub the video Fitzpatrick’s “47% moment.” The head of Pennsylvania’s AFL-CIO said Fitzpatrick’s comments “imply that people who receive paychecks rather than own businesses are somehow less important to the American economy.” Nope, in working for and cashing those paychecks, we don’t contribute anything, serve anyone, or buy anything such as cars, homes, manufactured goods, college educations for our kids, etc. Nope, we’re just entitled slackers, signing the backs of checks and then doing absolutely nothing with them.
Also troubling to me is Fitzpatrick’s outdated word choice in describing the front-of-paycheck signers who took risks: “you, your wife and your banker.” Really? Is it 1950 where Fitzpatrick lives and no women – single or  married – are starting businesses on their own? Or are these women just not invited to his Kitchen Table Patriots meetings?
The Takeaway: Voters in the PA 8th, vote Kathy Boockvar for Congress.

“Certainly, this first term, I did not lead with wanting to compromise. Now the hope is, after this election … no matter how it shakes out, we now have to decide how to figure out how to build a house.” – Republican Congressman Joe Walsh, from Illinois’ 8th District

So…basically, you were an obstructionist Tea Party asshole in your first term, determined not to assist the President in anyway that might potentially improve the economy. But now that Tammy Duckworth is kicking your ass in the polls, you decide to tell the press than in your second term, you’ll “build a house.” Riiiight. How about this, Joe? We boot you off the government payroll forcing you to “get a job” as you so succinctly told Sandra Fluke to do and we replace you with someone who gives a damn about all Americans, not just those in the Tea Party?
The Takeway: Voters in the IL 8th, vote Tammy Duckworth for Congress.