Throwing Prosecutors Under The Bus

-Submitted by David Drumm (Nal), Guest Blogger

In the case of Fourtin v. Connecticut, the Supreme Court of Connecticut overturned the conviction of Richard Fourtin. Fourtin was convicted of sexually assailing a twenty-five year old woman with significant mental and physical handicaps including cerebral palsy, mental retardation and hydrocephalus. The Court, in affirming the Appellate Court’s judgement, found that the woman could have used “gestures, biting, kicking and screaming” to indicate “her lack of consent to sexual intercourse at the time of the alleged sexual assault.”

Many were initially outraged at the opinion of the Court, here, here, and here. However, Ken at Popehat schooled the outraged in the meaning of due process. Ken pointed out that the prosecutors:

made the strange and probably incompetent tactical decision to charge Fourtin under an infrequently used subsection of the Connecticut rape statute, a subsection that only applies to sexual assault of someone who is “physically helpless.”

The Court found that the woman did not exhibit the “physically helplessness” required by the statute. The Court cited precedence and similar laws and court rulings from other jurisdictions to support their finding that physically helplessness “has a particular statutory meaning that requires more than a showing that a victim is totally physically incapacitated.”

The relevant statute defines physically helpless as:

(6) “Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

The woman was not unconscious so the prosecutors would have to prove that the woman was “physically unable to communicate unwillingness.” The Court ruled that the prosecutors did not meet that obligation, fundamental to due process.

The question that is left unanswered by those criticizing the prosecutors is why did the prosecutors choose an infrequently used statute? An obvious answer is that the prosecutors didn’t think they could get a conviction using another statute.

Applying “physically helplessness” to a severely disabled woman would have the effect of using the power of the state to prevent her from engaging in sexual intercourse.

H/T: Gideon, Connecticut Post, Scott Greenfield.