Connecticut Supreme Court Holds That a Woman With Cerebral Palsy Can Consent to Sex; Think Progress Screeches in Horror

This came across my twitter feed yesterday:

So scary and disturbing >>> Court Rules Disabled Woman Wasn't Raped Because She Didn't 'Bite, Kick or Scratch' - po.st/gCepIt
— Angelina Simms (@angelinasimms) October 8, 2012

What this tweet invoked was the old rules that required a woman to fight if she is being raped, even if she is afraid the guy might get more violent in response.  Fortunately I believe every single state in the union has scrapped this rule, either defining rape as sex without a person’s consent or by the use of the amount of force necessary to accomplish the act—and not to get too graphic, but that force requirement is very often met by the mere act of penetration.

So oh no!  Connecticut is taking a step backwards from this!  It’s like there is a war on women or something!

And if you track this back to the original Think Progress piece, you get breathless passages like this:

According to the Rape, Abuse, and Incest National Network (RAINN), lack of physical resistance is not evidence of consent, as “many victims make the good judgment that physical resistance would cause the attacker to become more violent.” RAINN also notes 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.

So again, war on women and whatnot.

Except for one thing.  Would it shock you to learn that Think Progress is being less than honest?  Well, not if you are paying attention.  What Think Progress is doing is demagoguing against the Supreme Court of Connecticut and ultimately arguing for a rule of law that would say that if a person has this woman’s disabilities, he or she can never legally have sex.  Don’t believe me?  Well, follow along.

For starters if you actually examine the law in Connecticut you will see that they define sexual assault (there is no separate crime of “rape” but it is generally understood as such), in ways that are perfectly ordinary.  Connecticut General Statutes §53a-70 defines Sexual Assault in the First Degree in part as follows: “(a) A person is guilty of sexual assault in the first degree when such person ... compels another person to engage in sexual intercourse by the use of force against such other person” among other things (such as threat of force, children under thirteen and other issues not immediately relevant to this case).  And it defines Sexual Assault in the Fourth Degree in part as follows: “A person is guilty of sexual assault in the fourth degree when: such person subjects another person to sexual contact without such other person's consent[.]”  There are other parts to this law which we will discuss in a minute, but the point is Connecticut law covers both “classic” categories of what is normally called rape: sex by force and sex without consent.

But the defendant in this case was not charged with either of those, and that should be your first warning sign that things are not as tidy as Think Progress makes it out to be.  If you actually open up the Supreme Court of Connnecticut’s website and read the case, State v. Fourtin (dissent here) you find out some things they are not mentioning.  First, as I said a minute ago, they didn’t charge the defendant with forcible rape under first degree sexual assault, or rape as sex without the other person’s consent under fourth degree sexual assault.  What they did here was charge it under different sections of the second and fourth degree sexual assault statutes.  Let me quote to you the second degree assault statute in detail because I think it will be important:

(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; or (5) such other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or (6) the actor is a psychotherapist and such other person is (A) a patient of the actor and the sexual intercourse occurs during the psychotherapy session, (B) a patient or former patient of the actor and such patient or former patient is emotionally dependent upon the actor, or (C) a patient or former patient of the actor and the sexual intercourse occurs by means of therapeutic deception; or (7) the actor accomplishes the sexual intercourse by means of false representation that the sexual intercourse is for a bona fide medical purpose by a health care professional; or (8) the actor is a school employee and such other person is a student enrolled in a school in which the actor works or a school under the jurisdiction of the local or regional board of education which employs the actor; or (9) the actor is a coach in an athletic activity or a person who provides intensive, ongoing instruction and such other person is a recipient of coaching or instruction from the actor and (A) is a secondary school student and receives such coaching or instruction in a secondary school setting, or (B) is under eighteen years of age; or (10) the actor is twenty years of age or older and stands in a position of power, authority or supervision over such other person by virtue of the actor's professional, legal, occupational or volunteer status and such other person's participation in a program or activity, and such other person is under eighteen years of age.

Which is a really dense paragraph presented in a needlessly difficult-to-read format.  So let’s make it into an outline, shall we?

(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; or

(5) such other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or

(6) the actor is a psychotherapist and such other person is

(A) a patient of the actor and the sexual intercourse occurs during the psychotherapy session,

(B) a patient or former patient of the actor and such patient or former patient is emotionally dependent upon the actor, or

(C) a patient or former patient of the actor and the sexual intercourse occurs by means of therapeutic deception; or

(7) the actor accomplishes the sexual intercourse by means of false representation that the sexual intercourse is for a bona fide medical purpose by a health care professional; or

(8) the actor is a school employee and such other person is a student enrolled in a school in which the actor works or a school under the jurisdiction of the local or regional board of education which employs the actor; or

(9) the actor is a coach in an athletic activity or a person who provides intensive, ongoing instruction and such other person is a recipient of coaching or instruction from the actor and

(A) is a secondary school student and receives such coaching or instruction in a secondary school setting, or

(B) is under eighteen years of age; or

(10) the actor is twenty years of age or older and stands in a position of power, authority or supervision over such other person by virtue of the actor's professional, legal, occupational or volunteer status and such other person's participation in a program or activity, and such other person is under eighteen years of age.

Likewise, let me quote to you from the fourth degree sexual assault statute.  It has a similarly badly formatted language, so I will alter it to make it into an outline as follows:

(a) A person is guilty of sexual assault in the fourth degree when:

(1) Such person intentionally subjects another person to sexual contact who is

(A) under thirteen years of age and the actor is more than two years older than such other person, or

(B) thirteen years of age or older but under fifteen years of age and the actor is more than three years older than such other person, or

(C) mentally defective or mentally incapacitated to the extent that such other person is unable to consent to such sexual contact, or

(D) physically helpless, or

(E) less than eighteen years old and the actor is such other person's guardian or otherwise responsible for the general supervision of such other person's welfare, or

(F) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or

(2) such person subjects another person to sexual contact without such other person's consent; or

(3) such person engages in sexual contact with an animal or dead body; or

(4) such person is a psychotherapist and subjects another person to sexual contact who is

(A) a patient of the actor and the sexual contact occurs during the psychotherapy session, or

(B) a patient or former patient of the actor and such patient or former patient is emotionally dependent upon the actor, or

(C) a patient or former patient of the actor and the sexual contact occurs by means of therapeutic deception; or

(5) such person subjects another person to sexual contact and accomplishes the sexual contact by means of false representation that the sexual contact is for a bona fide medical purpose by a health care professional; or

(6) such person is a school employee and subjects another person to sexual contact who is a student enrolled in a school in which the actor works or a school under the jurisdiction of the local or regional board of education which employs the actor; or

(7) such person is a coach in an athletic activity or a person who provides intensive, ongoing instruction and subjects another person to sexual contact who is a recipient of coaching or instruction from the actor and

(A) is a secondary school student and receives such coaching or instruction in a secondary school setting, or

(B) is under eighteen years of age; or

(8) such person subjects another person to sexual contact and

(A) the actor is twenty years of age or older and stands in a position of power, authority or supervision over such other person by virtue of the actor's professional, legal, occupational or volunteer status and such other person's participation in a program or activity, and

(B) such other person is under eighteen years of age.

Now the woman in question (only known as “the victim”) has cerebral palsy (among other disabilities).  This is how the court described her medical history:

The [victim] is a woman with significant disabilities that affect the manner in which she interacts with others. She [suffered a brain hemorrhage after being born three months premature, and her disabilities include] cerebral palsy, mental retardation and hydrocephalus. She cannot walk and needs assistance in performing the activities of daily living. She is nonverbal but communicates with others by gesturing and vocalizing and through the use of a communication board.

So that might lead you to think that the state of Connecticut was going to call it sexual assault by virtue of the fact that the victim “is mentally defective to the extent that such other person is unable to consent to such sexual intercourse.”

Well, not quite.  They argued instead that she was “physically helpless.”  Anyone who has dealt with people with those disabilities would be reluctant to call such people “helpless” in the ordinary sense of the word.  I mean they are greatly disabled to be sure.  I don’t want to sugar-coat it with terms like “handi-capable” (retch).  But “helpless?”  She doesn’t obviously seem to be “physically helpless”—as that term is ordinarily understood.

But what you don’t realize when reading this is that this is a special breed of linguistic booby trap that you find in the law.  I mean if I start saying res ipsa loquitur or talk about a writ of mandamus, you are given some kind of fair warning that I have stopped speaking ordinary English and now I am speaking in legalese.  You are given fair warning to look those terms up.  It gives you a fighting chance of figuring out what I mean.  On the other hand, you might see a statute talk about when something is “discovered” or use the term “malice” and you because those words appear to be ordinary English, you might not realize that these are legal terms of art, with a specialized meaning.  It’s a booby trap in the law; you think you know what you are reading because it looks like ordinary English, but the law inserts a special meaning into what appear to be ordinary words in the English language that end up biting you in the hindquarters when you least expect it.

That is definitely the case with the Connecticut statutes on sexual assault and the term “physically helpless.”  It has a specific and idiosyncratic meaning that one would not ordinarily suspect.  General Statutes §53a-65 defines the term as follows: “‘Physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.”  In other words, this isn’t about being overall helpless, but rather it is about being unable to communicate by any means.  It’s bad legal drafting, and the law should be changed to something like “uncommunicative” if only for clarity’s sake.  I do believe that the average citizen should be able to open a statute book and have some chance of figuring out what the law requires of them and this kind of writing goes against that philosophy.

So “physically helpless” really means incapable of communicating consent or lack thereof.  And of course we recognize that the communication doesn’t have to be verbal.  If one of the people are deaf, they usually can’t speak, and will use signs and the like.  The key thing to get, however, is in order to be “physically helpless” within the meaning of Connecticut’s law on sexual assault, the person has to be incapable of making him or herself understood.  And that is where the facts become important.

The allegations, if true, are pretty rotten.  Basically the defendant was the boyfriend of the victim’s mother and had helped take care of her on occasion.  So it sounds like this man might have sexually assaulted a handicapped woman, perhaps hoping she could never point a finger at him...

...or maybe not.  We weren’t there, and all we have is the dry text of testimony.  Issues like credibility cannot be judged in circumstances like this.  But let’s not forget that for whatever reason the state is not alleging that he forced her or that she didn’t consent.  It is alleging that she is “physically helpless” which you know now is better understood as “incapable of communicating her lack of consent.”

And reading the facts, you also find out how the crime came to light.  Did someone allegedly barge in as Mr. Fourtin allegedly assaulted her?

Well, in fact, no.  You see, no one was there to see the act happen besides the defendant and his alleged victim.  Instead she told people after the fact what had happened.  Again, not with words, but... here’s how the court explained:

“In 2006, the [victim] was attending an adult day care program for . . . physically, emotionally or mentally disabled [persons]. Deacon Raymond Chervenak was a staff member at the day care program with whom the [victim] regularly communicated about her interest in sports. On February 23, 2006, Chervenak observed that the [victim] looked ‘aggravated’ and ‘scared.’ In response to Chervenak’s inquiry, the [victim], by means of appropriate gestures and the use of a communication board, made him aware that the defendant had sexually assaulted her at her home. In similar fashion, the [victim] repeated this accusation to Frances Hernandez, the supervisor of the adult program, by pointing to her own body parts and [to] Chervenak’s body parts. A subsequent medical examination disclosed physical symptoms consistent with the [victim’s] report that she had been sexually assaulted.”

Which seems like a contradiction doesn’t it?  Again, the narrow issue is whether she could have communicated to her alleged attacker that she wasn’t consenting.  Logically speaking if a woman can communicate a concept as complex as “this man had sex with me without my consent” it is hard to explain why she couldn’t equally say to the alleged attacker himself, “this is without my consent.”

Indeed, cross examination of the victim’s mother, identified only as “S” yielded this devastating admission:

Subsequently, during cross-examination, defense counsel asked S whether the victim had ‘‘any problem whatsoever communicating that she did or didn’t want to do something . . . .’’ S responded that the victim ‘‘never had a problem.’’ Defense counsel then asked: ‘‘If you took her to the shower when she didn’t want to go to the shower, I think you testified [that] she would bite you?’’ S responded, ‘‘Yes, and kick [and] scratch.’’

(Emphasis added.)  So the victim’s own mother said she had no trouble getting her point across.  And further, the woman had ways of communicating that could be understood even by people unfamiliar with her.  This testimony seems to demonstrate that the woman was capable of communicating her lack of consent in a way most people would get (and is not limited to kicking, biting and scratching as the tweet at the beginning suggested):

The victim’s grandmother, R, testified that the victim had a temper and that, ‘‘[i]f she didn’t like what she was supposed to do, she would screech, and, to anyone who . . . wasn’t used to the noise . . . it would be kind of unnerving.’’

And like I said above, the defendant was, at the time, her mother’s boyfriend and he had helped take care of her now and then.  So he knew how she communicated.

Meanwhile the prosecutors so neglected this issue that one is left suspecting that they literally didn’t understand the statute.  That is, perhaps as a consequence of the “booby trap” I told you about before, the prosecutors might not have understood the very law they were prosecuting the man under:

With respect to whether the victim was physically helpless at the time of the alleged assault, the prosecutor argued that the jurors could find that she was because, like an infant, ‘‘[s]he is totally dependent on others.’’ The prosecutor’s contention that the victim was like an infant in terms of her physical dependency was the only argument that he made at trial with respect to the physically helpless prong of the charged offenses.

So the Supreme Court of Connecticut, decided that the state had not proven, beyond a reasonable doubt, that this woman was incapable of communicating her lack of consent.  Which given what I showed you above, actually seems like a perfectly reasonable interpretation of her abilities, doesn’t it?

And there is a deeper issue here that everyone, including the majority, seems to miss.  What was on the docket that day was not just whether this man had raped this woman, but also whether this woman could ever legally have sex.  Consider for a moment what a conviction would have said.  It would have placed the alleged victim the category of people incapable of legally consenting to sex, much like an underage person.

This is not a simple issue.  On one hand if a woman is said to have the mentality of a child, then one might reason that for the same reason that sex with children is wrong, sex with a woman that is so handicapped is wrong.

But on the other hand, you grow out of an ordinary age restriction.  The alleged victim in this case will be unlikely to ever be cured of her condition.  Are we really going to say that even if a man marries her, even if she is more than willing, that if he dares to have sex with her he can be prosecuted for second degree sexual assault?

Are we really ready to declare sex with such persons illegal?

You might sense where I lean on the subject.  I think we have to make some kind of accommodation that recognizes that sex is a part of life for people in her condition and they have to be able to have sex.  But you might also sense that I very much understand the opposing view.  And how can I say this?  I think the issue is just too delicate for demagoguery.  If you disagree, if you think that the woman will never have the mental capability of deciding when it is appropriate to have sex, you’re not a bad person; you just disagree with me on what is bluntly a tough question.  It’s a balancing between allowing this handicapped woman to have a full life and have her personhood recognized, and the fear that she might be taken advantage of.

But whatever you think philosophically, the fact is that this is not for the Connecticut Supreme Court to decide and they haven’t.  The Connecticut legislature has.  If you go and look at the same statutes, there is a phrase that addresses when a person is so incapacitated that they cannot consent.  Both statutes I quote above had language like this “mentally defective or mentally incapacitated to the extent that such other person is unable to consent to such sexual contact” and if this woman was found to be in that category, she could not legally consent to sex.  Early on in this discussion I noted that this man was not prosecuted under that theory, but § 53a-65 explains that “‘Mentally defective’ means that a person suffers from a mental disease or defect which renders such person incapable of appraising the nature of such person's conduct.”  If a person meets this definition in the statute, sex with him or her is flatly illegal even if that person says the word “yes,” just as it is with an underage person.  So the legislature of Connecticut has made its own judgment about when a person is utterly incapable of consenting, and for one reason or another the prosecutors didn’t even attempt to assert that this woman would belong in that category, perhaps because it sounds like she doesn’t.  So instead they tried to do an end run around this “mentally defective” language, trying to declare that she was incapable of communicating whether she consented or not.

In terms of law, I think this is pretty straightforward.  The entire case began with her non-standard ability to communicate.  But for her communication skills it would have been hard to detect whether an alleged crime had occurred and it might have been difficult to determine who allegedly committed it.  It is bizarre to pretend suddenly she lost all communicative ability during this alleged attack.  The state should be required to prove rape by exactly the same standards as any "normal" person.

In terms of morality, I admit the questions are dicier.  Reasonable people can disagree on whether a person in her state should be allowed to consent to have sex.  I lean toward yes, but I don’t think a person is evil for thinking otherwise.  But for Think Progress to take such a delicate and difficult issue and turn it into an occasion for cheap “War on Women” demagoguery is wrong and vile.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.