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View Diary: CT Court appears to join war on women and a reporting error uncovered. (46 comments)

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  •  You are right to wonder about the prosecution. (2+ / 0-)
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    Susan from 29, tytalus

    Footnote 20 of the opinion (bolding mine):

    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.

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