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 Post subject: CT Supreme Ct - If you can't say "NO" You Consent (Trigger)
PostPosted: Tue Oct 16, 2012 1:27 pm 
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This is pretty much the most horrifying thing. Sign the petition: http://act.watchdog.net/petitions/1611?l=07XC0_86dpQ

In January 2008, Richard Fourtin Jr. was convicted of second and fourth-degree sexual assault in the rape of a severely handicapped, mentally disabled woman in 2005. But this year, the Connecticut Supreme Court threw out the conviction and let Fourtin go free, arguing that because the 26-year-old victim is almost incapable of saying no to sex, it was as if she had said yes.

The woman, now 29, who in court only went by her initials, L.K., has severe cerebral palsy and cannot verbally communicate. She is so physically restricted that she is able to make motions only with her right index finger. In order for the woman to testify during the trial, a small video camera was placed over her and a tray affixed to her chair. On the tray, the prosecutor placed a board printed with the letters of the alphabet along with the words "yes" and "no" on top. After each question, the woman's left hand would push her right hand, index finger sticking out, across the board to either spell out a word or answer yes or no. It was an exhausting process that lasted four days.

However, the defense argued that there was evidence the woman could communicate by biting, kicking, screaming and gesturing. They presented testimony at trial from a home health aide who said the woman would kick and groan if she didn't get food she wanted.

The state Appellate Court later ruled she is not physically helpless under the state law in which a jury convicted Fourtin. The state then took an appeal to the Supreme Court. "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," the high court ruled Monday.

Read more: http://www.ctpost.com/news/article/Supr ... z29UFmJv4F

For the Connecticut Supreme Court to rule in Fourtin’s favor, they had to assume all women are in a constant state of consent unless they explicitly state otherwise, putting the burden of proof for rape on a severely handicapped woman with the mind of a three-year-old rather than her attacker. This disgusting ruling doesn’t just put Fourtin back on the street – it also makes it impossible for him to ever be convicted of the crime.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 1:35 pm 
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This is the most disgusting thing. I don't want to look it up right now because I'm already a bit upset, but I believe I remember reading that she is estimated to have the mental capacity of a six year old. Even if she'd somehow communicated a positive response to her attacker, she doesn't have the capacity to give consent! I am so scared to be a woman in this country sometimes.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 1:53 pm 
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Women who are developmentally disabled are already victims of sexual assault and rape at staggering rates (I've heard numbers as high as 85%).

This is a great piece about the issues involved. http://disabledfeminists.com/2010/05/18 ... -me-angry/

Quote:
One of the persistent problems with rape and sexual assault cases is that they tend to be very poorly reported in the media. They aren’t reported at all, for the most part, if they involve nonwhite women, sex workers, disabled women, trans women, and other women living in marginalised bodies, and when they are, it is treated as regional news, instead of a systemic and serious problem. In the case of women with disabilities, rapes are often reported as a crime against society, rather than against the victim.

This tends to create a situation where it’s hard to get accurate information and where people underestimate the frequency of rapes of people in marginalised bodies. Indeed, there’s a widespread social attitude that rape of people with disabilities doesn’t occur because ‘why would anyone want to have sex with them‘ when, in fact, people with disabilities are deliberately targeted by sexual predators. People who cannot report crimes, who will not be believed when they report them, who are not provided with the tools for reporting, who can be easily threatened and intimidated by their rapists, are viewed as ideal targets for rape and abuse.

Especially in institutions, rates of sexual assault and physical abuse are, to be blunt, revoltingly high. Even more revolting are practices such as sterilisation, ostensibly for ‘convenience,’ but really to prevent rape victims from getting pregnant so that no one recognises that they are being abused. Depriving people who use communication books and boards of the terms and concepts they need to describe what has been done to them. Dismissing rape reports made by people with mental illness. There’s a reason that women with disabilities experience rape at levels much greater than the average.


So its already incredibly hard for someone with developmental disabilities to bring a credible rape charge, because she has to convince people that she is credible. And now we add another hurdle, that once charges are brought, any communication skills she has at all will be held against her.

I despair for humanity

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 2:01 pm 
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I'm almost completely lost for words.

In my experience of working with the UK Court of Protection those who have conditions similar to hers are very likely to be deemed as lacking mental capacity and therefore are unable to consent. It's beyond me how a court have let this happen.


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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 2:13 pm 
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signed & shared. i'm glad to see a petition going around about this.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 2:25 pm 
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I tried to look up more details of the original case but couldn't. It sounded like she was assaulted in a care facility. I'm assuming that this person worked in the facility?

Beyond all the issues with her not fighting 'enough', was someone who she might've expected to take care of her abused her? Was there not enough 'fight' because she didn't realize what was going on until it was too late? Should we not reasonably expect that someone who works in a care facility doesn't try to assault those in their care?

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 2:33 pm 
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EmperorTomatoKetchup wrote:
signed & shared. i'm glad to see a petition going around about this.


That is true.

Linanil, here is the text of the Ct S.Ct Opinion: http://www.jud.ct.gov/external/supapp/C ... 07CR83.pdf The assailant was her mother's boyfriend, who helped care for her. So he was a caregiver and someone she should have been able to trust, but it didn't happen in an institutional setting.

The Court held that the jury could not reasonably have found that the defendant was helpless and unable to communicate, because she was able to kick, grunt and otherwise make her displeasure known, even though she was non-verbal.

It looks like the prosecutor messed up big time by charging the defendant under a statute with a higher burden than "inability to consent by reason of mental defect." So the Court limited its findings to saying that moving = communication. Here because she could move, she could communicate.

Quote:
An astute reader pointed out that the prosecution appears to have made an egregious error in the trial. Instead of prosecuting the sexual assault on grounds that the victim was “mentally defective” (subsection 2 of this code), they charged that sexual assault took place because the victim was “physically helpless” (subsection 3). Without the subsection 2 evidence, the Court could not consider the mental capacity of the victim and hence ruled only on physical helplessness, perhaps wrongly. As noted above, disability rights advocates still have major concerns about the majority’s holding on subsection 3 grounds, as it appears to set a higher standard of proof of “physical helplessness” for disabled victims relative to able-bodied ones. http://thinkprogress.org/justice/2012/1 ... ?mobile=nc

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 2:52 pm 
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Tofulish - Thanks, I read somewhere else that she was living somewhere and it sounded like the name of a care facility, maybe it is her current location or the apartment complex just has that type of name.

The whole thing is so heartbreaking, especially those that are dependent on others for their care.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 3:02 pm 
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I can't even wrap my brain around how a decision like this could ever come out of a court of law. Just disgusting. Signed.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 4:01 pm 
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What. The. fork.

On what planet (it can't be Earth), do we default to allowing people to do anything they want?

This exemplifies Poe's law better than anything else I've ever heard of.

What. The. fork.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 4:06 pm 
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Supreme Court web page:

http://www.jud.ct.gov/external/supapp/supjustices.htm

Here is the decision: http://www.jud.ct.gov/external/supapp/C ... 07CR83.pdf

I'm confused. At the bottom it lists three justices as concurring. Where is the fourth?

The chief justice is a woman who was appointed by Obama. She concurred.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 4:26 pm 
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One writes the opinion, the other three concur.

Everything about this is horrible. Including the fact that if this woman is raped again (which is probable given what statistically happens to developmentally disabled people) she now has a history of "false accusations" that may be used to discredit her.

Though honestly, after all she's been through I'm sure she, like many other women just won't even try to get justice.

It breaks my heart that so many people failed her. Her mom who brought her predator in, her caregiver, the prosecutor's office who just forked up the charges and didn't amend them so a jury could find her unable to consent, the appellate court and the supreme court. She sounds like a smart person who tried really hard to communicate that something was wrong and fought for justice only to lose because people are crassholes. The standard to be used for disabled women is now stricter than the one we use to show physical inability to consent or communicate for able bodied women.

If you can, read the opinion (linked in my post and LW's) because it shows how hard this woman worked to be heard. I want to kick the prosecutor for forking up the charges, because the mental inability to

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 4:34 pm 
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Is there some legal technicality here that forced this ruling?

Help me out here. I'm looking for a sign of sanity and humanity. I didn't see anything in the brief.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 4:40 pm 
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In my post upthread I explained it. Basically prosecutor brought a set of charges (physically unable to consent) that are harder to prove than others that would have been available (mental inability to consent). Because they couldn't hold that she was not mentally able to consent (a slamdunk bc she has a mental age of 3), they had to show she couldn't have physically shown consent and the court held that the jury couldn't have reasonably found that to be the case because though she couldn't speak and is nonverbal she was able to communicate through grunts and kicks and moving a finger. So she would have had to be in a coma (like The Bride in Kill Bill) or bound and g,agged for the charges to apply, according to the court. (Appellate and Supreme). This is imposing a very high and hard to meet standard.

So first the prosecutor messed up the charges and then the court set aside the jury verdict that was humane and sane. And it wasn't just the Appellate it was the Ct Supreme Ct too, so I assume that she is done on a local level as there are no higher courts. So her rapist goes free and bc of double jeopardy can't be tried again. Even if they use the mental inability to consent charge. He is free.

Read the disabled feminist post I linked too, it is really crazy how vulnerable people are and how they are groomed by predators who like having a victim no one will believe. It really sounds like Lolita- this guy gets close to the mother to get access to rape the daughter.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 5:06 pm 
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Right, but what I mean is, if you take compassion and common sense at it and just strictly examine the points of law, does the verdict make sense?

If the prosecutor bungled it, could that office be held liable for some type of malpractice?

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 5:15 pm 
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No and No.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Tue Oct 16, 2012 8:50 pm 
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I disagree. I think the ruling does make sense within the framework of the law as it was applied here. By finding that she could communicate, by any means, he was therefore not guilty of the crime he was charged with, which specified that the victim was physically helpless. The definition of "physically helpless" is apparently up for debate, but under the definition apparently applied by the court, the victim did not fall into this category by virtue of her being able to communicate.

Not saying its not a shitty outcome, but I can see how the ruling was arrived at.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Wed Oct 17, 2012 12:39 am 
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shortbus wrote:
I disagree. I think the ruling does make sense within the framework of the law as it was applied here. By finding that she could communicate, by any means, he was therefore not guilty of the crime he was charged with, which specified that the victim was physically helpless. The definition of "physically helpless" is apparently up for debate, but under the definition apparently applied by the court, the victim did not fall into this category by virtue of her being able to communicate.

Not saying its not a shitty outcome, but I can see how the ruling was arrived at.


"Shitty outcome"?! Seriously, dude. (You are a dude, right? Just guessing here.)


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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Wed Oct 17, 2012 7:05 am 
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Bun wrote:
shortbus wrote:
I disagree. I think the ruling does make sense within the framework of the law as it was applied here. By finding that she could communicate, by any means, he was therefore not guilty of the crime he was charged with, which specified that the victim was physically helpless. The definition of "physically helpless" is apparently up for debate, but under the definition apparently applied by the court, the victim did not fall into this category by virtue of her being able to communicate.

Not saying its not a shitty outcome, but I can see how the ruling was arrived at.


"Shitty outcome"?! Seriously, dude. (You are a dude, right? Just guessing here.)


Really? That's what you want to discuss, my choice of words to describe the one point we probably agree upon?

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Wed Oct 17, 2012 7:34 am 
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The charges brought were under a standard of "physical helplesness"

Quote:
PHYSICALLY HELPLESS

"Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

Source: General Statutes § 53a-65 (6) (applies to Part VI: Sex Offenses, §§ 53a-67 -- 53a-90a).

Commentary: See State v. Fourtin, 118 Conn. App. 43, 48-53, cert. granted, 294 Conn. 926 (2009) (state presented insufficient evidence that the complainant was either unconscious or so uncommunicative that she was physically incapable of communicating her lack of consent); State v. Hufford, 205 Conn. 386, 398-99 (1987) (court improperly charged on physical helplessness because the victim had repeatedly told the defendant to stop touching her, indicating that she was able to communicate her unwillingness to the act); State v. Solek, 66 Conn. App. 72, 79, cert. denied, 258 Conn. 941 (2001) (victim was physically helpless at the time of the assault when defendant murdered her and then sexually assaulted her).


If you read the opinion, the case-law that the Court relied on (both in CT, NY and elsewhere) interprets the standard for physical helplessness as being unconscious or 100% immobilized AND unable to speak/vocalize (one case (Hufford) held that a woman strapped on a stretcher and assaulted by a paramedic wasn't physically helpless because she could still say "No" even though she was completely physically immobilized). The case (cited above) where physical helplessness was found was Solek, where the victim was sexually assaulted after being murdered.

So yes, the ruling is supported by case law that interprets "physical helplessness" very narrowly.

I just think (and this is the reason for my "No" to LW) that it makes no sense to interpret a legal standard so restrictively that it becomes meaningless. At the end of the day, the standard for physical helplessness is now so strict that it isn't going to protect victims, only offenders.

But I would still like to kick the prosecutor who didn't add charges that this was rape based on the victim's inability to mentally consent.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Wed Oct 17, 2012 9:26 am 
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Bun wrote:
shortbus wrote:
I disagree. I think the ruling does make sense within the framework of the law as it was applied here. By finding that she could communicate, by any means, he was therefore not guilty of the crime he was charged with, which specified that the victim was physically helpless. The definition of "physically helpless" is apparently up for debate, but under the definition apparently applied by the court, the victim did not fall into this category by virtue of her being able to communicate.

Not saying its not a shitty outcome, but I can see how the ruling was arrived at.


"Shitty outcome"?! Seriously, dude. (You are a dude, right? Just guessing here.)


Well, his name is shortbus, which is flagrantly offensive; I've learned that if I see a post from that name, I ignore it because it never contributes anything meaningful to the conversation. He's the partner of a regular PPKer.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Wed Oct 17, 2012 9:56 am 
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shortbus wrote:
Bun wrote:
shortbus wrote:
I disagree. I think the ruling does make sense within the framework of the law as it was applied here. By finding that she could communicate, by any means, he was therefore not guilty of the crime he was charged with, which specified that the victim was physically helpless. The definition of "physically helpless" is apparently up for debate, but under the definition apparently applied by the court, the victim did not fall into this category by virtue of her being able to communicate.

Not saying its not a shitty outcome, but I can see how the ruling was arrived at.


"Shitty outcome"?! Seriously, dude. (You are a dude, right? Just guessing here.)


Really? That's what you want to discuss, my choice of words to describe the one point we probably agree upon?

No, I am simply offended that your privileged asparagus is trivializing this very serious issue which affects me, a woman, with that choice of words.


Last edited by Bun on Wed Oct 17, 2012 10:07 am, edited 1 time in total.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Wed Oct 17, 2012 10:04 am 
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I responded to the gist of SB's critique upthread, but Bun is right, that the use of the term "shitty outcome" really minimizes the effects of the verdict and shows up the same privilege that was at play in granting the verdict.

Yes, you can interpret the statute so narrowly, as to render it practically meaningless for victims, and that is how the patriarchy operates. A law can go into effect that is not problematic on its face, but if you have people who aren't able to serve the spirit of the law, which clearly was intended to protect women like the victim and the woman who was sexually assaulted by a paramedic while on a stretcher, then it is useless to victims. This is someone who is able to move one finger and spent 4 days testifying moving letters so she could speak out about her assailant, and you don't think that a jury could reasonably find that she was physically helpless?

And to hide behind the reasoning, as the court does, that legal physical helplessness is much more restricted than actual physical helplessness, really just makes a mockery of the intent of the statute.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Wed Oct 17, 2012 11:43 am 
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Thanks for the analysis, T'lish. That is the sort of nuance I just can't get from reading a legal brief.

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 Post subject: Re: CT Supreme Ct - If you can't say "NO" You Consent (Trigg
PostPosted: Wed Oct 17, 2012 11:53 am 
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Astonishing. The idea that a woman who can only move her index finger is capable of communicating much of anything, or that lack of dissent is substitutable for consent are both highly retrograde ideas on their face. If that's what the law says, the law is an asparagus.

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