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.

38 thoughts on “Throwing Prosecutors Under The Bus”

  1. Dredd and BettyKath,

    BK took the words out of my mouth, thanks.
    The answer: “You’d almost think that the prosecution wanted the guy to get off.”

    Now do we have a basis for investigating the prosecution? For mal-somthing? For taking bribes?
    For favoring somebody connected? For realizing how hard it is to get perverts who ore more than willing to work in the mental care and other care branches, to sweek employment? The greetest good vs the greatest cosst.

  2. Dredd,

    “This is not about legal age of consent, real age or cognitive level age.”

    Yes, this is exactly what this case is about. It is about the prosecution making the charge with the wrong statute. The prosecution showed with many witnesses that she had ways of expressing displeasure physically. They proved the case for the defense. You’d almost think that the prosecution wanted the guy to get off.

    There is another statute that takes mental defect into account. That’s the statute that should have been used.

    “Ralph Welsh, a clinical psychologist, described the victim’s total functioning as akin to that of a person between the ages of two and five years old, which he based on a ‘‘total composite’’ indicating ‘‘severe to profound deficit[s]’’ in the areas of living communication, daily living, socialization and adaptive behavior. The victim’s mathematical and language comprehension skills were between a kindergarten and second grade level. Welsh, who testified for the defense regarding what he considered to be the victim’s suggestibility during interviews and interrogations, compared the victim to a five year old child who has been ‘‘isolated’’ and has ‘‘not had contact with anything other than a certain limited world. . . . She’s not like the average five year old child who has . . . [many] more life experiences.’’

  3. The prosecution was at fault, not the two courts that reversed the conviction:

    Indeed, as the Appellate Court suggested; see State v. Fourtin, supra, 118 Conn. App. 49; this appears to be a case in which the state ultimately proceeded against the defendant under the wrong statute. Originally, the state also had charged the defendant with sexual assault in the second degree in violation of § 53a-71 (a) (2), attempt to commit sexual assault in the second degree in violation of §§ 53a-71 (a) (2) and 53a-49 (a) (2), and sexual assault in the second degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a) (1) (B), all of which require that the victim be unable to consent to sexual intercourse because the victim is ‘‘mentally defective . . . .’’ Because the evidence established that the victim’s cognitive abilities are significantly limited, the state could well have prosecuted the defendant under those provisions. The record does not indicate why the state decided not to do so and opted instead to pursue charges requiring proof that the victim was physically helpless. By electing to prove that the victim was physically helpless rather than mentally defective, the state removed from the case all issues pertaining to the victim’s mental capacity to consent to sex.

    (Fourtin, at footnote 20).

  4. In the case of Richard Fourtin Jr. the Connecticut State Supreme Court returned a 4-3 ruling. So … how about this:

    If an Appellate or Supreme Court is going to overturn a Jury verdict, then the ruling must be unanimous.

  5. bettykath 1, October 13, 2012 at 12:36 pm

    I’ve seen this story before. The woman’s mental age was 3 years, clearly not an age of consent.
    Not so.

    This is not about legal age of consent, real age or cognitive level age.

    If you read the case you will see she liked to communicate about sports and was consulted by others on employment matters because she would tell them without any reservations whether she thought that person would be a good employee for the home.

    The issue the statute was designed for was cases where a victim was asleep, overly drugged, or other states of unconsciousness.

    Thus the prosecution misfired when they charged and presented evidence during trial.

    Their case was not the type of case the statute was designed for, thus two courts agreed that no valid conviction could obtain under the case the prosecution presented when compared with the statute.

  6. Malisha 1, October 13, 2012 at 1:22 pm

    … The woman has a mental age of three years old?

    There are some cases cited in the opinion of cases where that was the case, but not in the Fourtin case we are discussing.

  7. This is the kind of mistake the law can make. When you look at the real crime, however, you can see that the problem with the prosecution was merely semantic. The woman has a mental age of three years old? In that case, she WAS physically unable to signal a lack of consent because she was unable (as would any three-year-old be) to comprehend both the action and the ramifications of her alleged consent or her alleged objection. There ARE cases of three-year-olds being sexually assaulted, unfortunately, and in almost every case that I have heard of or seen reported, the three-year-old did essentially NOTHING PHYSICAL on her or his own to react to the sexual assault. They cannot organize their thinking to come up with a kind of action that signals physical objection. The whole thing is, to them, to weird and out of the ordinary that they often have no reaction at all, until much later. THEN, how others respond to what has occurred sometimes gives them subtle or not-so-subtle signals about how extraordinary the experience was. The extraordinary character of the experience can, at the time of the event, totally eclipse other responses, though. In fact, one three-year-old I saw interviewed by a social worker (in a training tape being shown to providers of health care services to the public in underserved areas of the US) said, in answer to the question “Did you tell him NO?” that she did not tell him anything, and when asked to explain why she did not tell him anything, she answered with a clear-eyed response: “He dint ASK me nothing.” Of course, because of the child’s age, and the law clearly stating that her consent was not necessary, that wouldn’t matter. The interview did not lead to a prosecution, however, because the interviewer and the DA together decided that they couldn’t use the child’s testimony. Part of my presentation at that conference was a “how-to” relating to questions to use or avoid when interviewing abused kids. I pointed out that the question, “Did you tell him NO” was, by itself, a BIG MISTAKE if the law did not require the girl to object.

    The way the prosecutor presented the case was probably just fine; he or she is not to be blamed. One cannot fit every human experience into the template that makes “law” after the fact.

  8. 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 court affirmed the judgment of the lower appellate court that had reversed the conviction because the prosecution did not prove, or even try to prove, that the woman could indicate quite clearly “no” when she was so inclined:

    She is nonverbal but communicates with others by gesturing and vocalizing and through the use of a communication board. To manifest her displeasure, she can kick, bite and scratch. The [victim] can also vocalize her feelings by groaning or screeching. … the state asked Vetrano whether the victim ‘‘is susceptible to being suggested to or manipulated in any way?’’ Vetrano replied: ‘‘No. She is not. . . . She’s . . . very direct in what her beliefs are or what her feelings are toward others. [The victim is] actually . . . one of [the] people we use when we hire staff. … S testified similarly that the victim was able to express her feelings and emotions. When the prosecutor asked S whether the victim had gotten along with S’s former husband, the victim’s stepfather, S responded: ‘‘[H]e got along with her. She did not like him.’’ S explained that the victim ‘‘would always be frowning [when he was around] and she never wanted him near her. . . . And she . . . would try to hurt him.’’ When the prosecutor asked S whether the victim would try to hurt him physically, S responded: ‘‘Physically. Biting, scratching, leaving marks . . . [k]icking.’’ 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.’’

    If she, or any totally physically perfect woman or man had been asleep or overly drugged when the sex took place, then this statute would have resulted in a valid conviction.

    The appellate level courts both concluded that the prosecution used the wrong statute and legal theory in this case.

  9. I would not let the ba5tard pleasure my goat.

    As for eugenics, in Sweden, sex between incompetents is allowed if one is under contraceptive control, but no others are allowed.

    Mental defectives can not and should not be required to exercise control over their lusts of whatever kind.

    We don’t put a plate of food before a dog at the usual place, and expect him to wait because it is 30 minutes before his feeding time.

    Using “normal” consent and protest requirements shows that this law no sense.

    As for regard for Downs patients, we have had some wonderful programs where they have put on “their” version of a pop musical and became a traveling company, even as far as outside Sweden.

    Don’t ask them why they did not say NO.

  10. I’ve seen this story before. The woman’s mental age was 3 years, clearly not an age of consent. The prosecutors used the wrong statute. There is another statute that most likely would have resulted in a conviction and not overturned. The jury was able to see the level of disability, the Supreme Court did not.l

  11. 707 “Has at some point in her life, she been judged capable of giving consent to ANYTHING?”

    Thats a good part of the argument & a huge missing piece to the story. Should a mentally challenged person never be considered to be capable of consent? That sounds like the bad-old-days of eugenics. But we don’t know from what was given us how the charges where brought forward. Could it be that she did in some sense give consent? We don’t know because the people reporting the story failed to give us any relevant information.

    Certainly if she was not capable or did not give consent this is a travesty and a monstrous busterd (blasted filters!) is roaming the streets free.

  12. Blouise,
    I am with you on this one. This travesty victimized the handicapped woman a second time. To me this is almost as bad as Rep. Akin’s mentality.
    Good job David.

  13. “Legal gymnastics by apologists for the court are simply unpersuasive on this issue.” (Justice Holmes)

    I must agree with the above statement. I was not persuaded when this argument was first put forward and time has not changed my mind.

    The prosecutors did prove it to the Jury and in this instance the Appellate and the Supreme acted as a thirteenth juror with the power to not just hang the Jury but to set the man free guaranteeing that he could never be tried again for the crime.

    Gavel re-rape … and once again there was nothing the victim could do to stop it.

  14. Most likely the charged under the physically helpless statute because the penalty is more severe. Could this be an example of prosecutorial greed?

  15. The Ct Supreme Court has sent a dangerous message to sexual predators. The definition or interpretation of the standard is just that and this interpretation includes a leap that can only be explained by either a lack of understanding of the women’s ability to respond in any way or worse is tainted by a belief if a woman is raped unless she is brutally injured she must have wanted it. The Ct. Supreme Court is wrong, dangerously wrong.
    Legal gymnastics by apologists for the court are simply unpersuasive on this issue.

  16. Who and how was the complaint filed? By the handicapped woman? Has at some point in her life, she been judged capable of giving consent to ANYTHING?

    How does the law handle such considerations?

    Rape of children is based in principle of age and the meaning that they are not capable of judging the consequences of consent, and thus are not capable of giving informed consent.
    Could this also be true for this woman?

  17. I did not see a photo of the bus or the prosecutor being thrown under. The allegation of the article is sort of like the allegation in the criminal complaint.

  18. “Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” – Justice Oliver Wendell Holmes, Jr.

  19. There is (was?) a pretty good site I ran into some time ago that told the details of many infamous cases. In every case some of the details missing from the reported stories cast the case in a different light. Sadly, most media is more interested in a sensational story than in the difficult, often troubling, details and ignore the complexity for the visceral thrill of a “good story”. I’ll see if I can fond the url, I think many folks here would enjoy it.

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