Last fall, advocates for women and the disabled were outraged when the state Supreme Court overturned a rape conviction after concluding the woman — who had cerebral palsy and couldn’t speak — still could have done something to indicate that she didn’t want to have sex with her alleged attacker.
Now the state legislature is considering a measure that would amend the state statute that was at the heart of the case and potentially make it easier to prosecute those who sexually assault people with severe physical or developmental disabilities.
"We think it is really significant that we’ve identified a gap in existing law," said Anna Doroghazi, director of public policy at Connecticut Sexual Assault Crisis Services. "This isn’t just about one court case…we know people with disabilities are vulnerable to rape. We know people with disabilities are raped at twice the rate than other victims."
A public hearing was held Monday, March 25 in the General Assembly’s Judiciary Committee on what’s informally being called the "Fourtin Bill." About 20 organizations, agencies and individuals presented testimony, including Connecticut Sexual Assault Crisis Services, the state Office of Protection and Advocacy for Persons with Disabilities and the state Division of Criminal Justice. No one opposed the bill, which is likely to be voted on by the committee later this month.
State Representative Gerald Fox III, one of the committee co-chairs, has already come out in favor of a measure that would address the issues raised by the state Supreme Court. However, he said, "we’ve had to be extremely careful with the language that we use," in part so that the measure doesn’t end up banning handicapped people from consenting to sexual activity.
"The language has to meet those concerns [of protecting the disabled] without being overly broad, and address the specific cases where someone lacks the capacity to consent" to sexual activity, said Fox.
In State v. Fourtin, 52-year-old Richard Fourtin was accused of sexually assaulting his girlfriend’s profoundly handicapped daughter. The young woman with cerebral palsy has the intellectual capacity of a 3-year-old and can’t verbally communicate, according to court documents.
Fourtin was charged under a state statute that bans someone from having intercourse with a "physically helpless" person. The law goes on to define "physically helpless" as someone who is unconscious or for any other reason physically unable to communicate unwillingness to engage in an act.
During the trial, the defense called several witnesses who testified that the victim could communicate, by using gestures, kicking, biting or screaming. Nevertheless, Fourtin was convicted in 2008. The following year, the decision was reversed by the state Appellate Court; the state then appealed to the Supreme Court. There, once again, defense attorney Robert Byron argued that while the woman was disabled, she wasn’t "physically helpless" under the applicable statute because she could have communicated her resistance by biting, kicking, screaming or gesturing.
A narrow, 4-3 Supreme Court majority agreed and overturned Fourtin’s conviction.
"No one would dispute that the victim [was] ‘physically helpless’ in the ordinary sense of that term," Justice Richard Palmer wrote for the majority. However, he noted, under the statute, "even total physical incapacity does not, by itself, render an individual physically helpless."
The majority relied on a prior state Supreme Court case, State v. Hufford (1987), for its definition of helplessness. In that case, the victim alleged that an emergency medical technician sexually assaulted her while she was restrained by an ambulance stretcher. The court said the victim was not "physically helpless" on the grounds that "she was able to repeatedly tell the defendant to stop touching her," according to the opinion.
Palmer’s decision noted that the court had never before had to consider how the term applies to a severely disabled person who can communicate only by non-verbal means. It noted that in reviewing the "few factually similar cases from other states with similar definitions of ‘physically helpless,’ the sexual assault charges were dismissed or the conviction overturned in all cases but one."
The decision sparked an immediate backlash, both in the national media and among Connecticut advocates for women and the disabled.
"Overturning the Fourtin conviction was wrong," Melanie E. Danyliw, director of training and program development at the Women’s Center of Greater Danbury, said in a recent interview. "Victims should not have to prove their lack of consent. Initiators of sex must confirm consent, and if there is any doubt—as there definitely would have been in this case—don’t have sex."
Like others, Danyliw told the Judiciary Committee that advocates have been pushing for an amended law ever since the Appellate Court initially overturned the conviction in 2009.
"Individuals with disabilities have the right to live lives that are free from violence and our laws need to provide them with sufficient protection," Danyliw testified. "Advocates and lawmakers have been working together on this legislation for four years, and there has never been an organized opposition to it. All sides agree — this is a good bill, and it can’t wait for another year…. Legislation is the only way to undo this dangerous gap in the law."
The proposed bill would clarify how "physical helplessness" is defined under statutes. The new, key phrase is that someone who is "physically unable to resist" someone’s sexual advances would be considered "physically helpless," along with those who are unconscious or unable to communicate an unwillingness to engage in a sexual act. (The bill would also eliminate the phrase "mentally defective" from the statute, an outdated phrase from the 1960s.)
Supervisory Assistant State Attorney Susann E. Gill represented the state during the Fourtin appeal. "It was a difficult case," said Gill, referring to the debate over whether the woman with cerebral palsy could have communicated her objections. "The victim wasn’t able to give a lot of detail in context [and] nobody was present besides the two of them."
Gill doubts that any amount of screaming or kicking by the disabled woman would have prevented the assault. "Even if she could protest, it had already occurred," Gill said.
The prosecutor played a significant role in presenting a drafted bill four years ago before the legislature. Like the Supreme Court, Gill researched other states’ definitions of "physical helplessness" for guidance. She said the original draft pulled language from Ohio statutes, though it has been revised since then.
Gill and Fox think the current bill will be approved by the end of the legislative session, with lawmakers still sensitive to the outcry over last fall’s Supreme Court decision. Passage of a measure can’t come soon enough for some people.
"It is unacceptable to allow the sex offender to be vindicated of this heinous crime simply by saying it was a consensual act because the survivor was not ‘physically helpless’ and could have fought back," Mary DeLucia, a sexual assault counselor with the New Britain YWCA, told the Judiciary Committee. "If this same disabled survivor was instead the victim of a mugging, would we be asking her why she did not fight her mugger before giving them her wallet? Most likely, we would not." •