The Connecticut State Supreme Court has overturned the rape conviction of a man who had sex with a woman who has the mental capacity of a 3 year-old, is unable to communicate verbally and suffers from severe cerebral palsy.
In a 4-3 ruling Tuesday afternoon, the court ruled that Richard Fourtin Jr.'s rape conviction should be overturned because there was no evidence the victim bit, kicked or screamed to signify her refusal of consent. In their decision, the justices stated: "We are not persuaded that the victim was either unconscious or so uncommunicative that she was physically incapable of manifesting to the defendant her lack of consent to sexual intercourse at the time of the alleged sexual assault."
According to NBC Connecticut, the prosecution had based its case the fact the victim was physically helpless at the time of the attack. In Connecticut physically helpless is defined as ‘‘unconscious or for any other reason is physically unable to communicate unwillingness to an act."
The defense argued that the victim could have "communicated" by biting, kicking, screaming or gesturing.
During the initial trial, clinical psychologist Ralph Welsh described the victim’s total functioning level as that of someone between the ages of two and five years old. This assessment was based on the fact the victims had ‘‘severe to profound deficits in the areas of living communication, daily living, socialization and adaptive behavior."
The Connecticut Post report that when the victim was questioned during the initial trial, a small video camera was placed over her and a tray was affixed to her chair. The prosecutor placed a board printed with the letters of the alphabet along with the words "yes" and "no" on the tray. After each question, the woman's left hand would push her right hand, index finger extended, across the board to either spell out a word or answer yes or no. The entire questioning process took four days to complete due the time required for the victim to answer each individual question.
According to the Rape, Abuse, and Incest National Network (RAINN), a lack of physical resistance is not evidence of consent, because “many victims make the good judgment that physical resistance would cause the attacker to become more violent.” They also state that lack of consent is implicit “if you were under the statutory age of consent, or if you had a 'mental defect' as the victim did in this case."
Anna Doroghazi, director of public policy and communication at Connecticut Sexual Assault Crisis Services, told Think Progressive“By implying that the victim in this case should have bitten or kicked her assailant, this ruling effectively holds people with disabilities to a higher standard than the rest of the population when it comes to proving lack of consent in sexual assault cases. Failing to bite an assailant is not the same thing as consenting to sexual activity.”
Connecticut advocates for disabled persons filed an amicus brief filed which argued that the higher standard “discourag[ed] the prosecution of crimes against persons with disabilities” even though “persons with a disability had an age-adjusted rate of rape or sexual assault that was more than twice the rate for persons without a disability.”