In a 4-3 ruling Tuesday afternoon, the Connecticut State Supreme Court overturned the sexual assault conviction of a man who had sex with a woman who “has severe cerebral palsy, has the intellectual functional equivalent of a 3-year-old and cannot verbally communicate.” The Court held that, because Connecticut statutes define physical incapacity for the purpose of sexual assault as “unconscious or for any other reason. . . physically unable to communicate unwillingness to an act,” the defendant could not be convicted if there was any chance that the victim could have communicated her lack of consent. Since the victim in this case was capable of “biting, kicking, scratching, screeching, groaning or gesturing,” the Court ruled that that victim could have communicated lack of consent despite her serious mental deficiencies:When we consider this evidence in the light most favorable to sustaining the verdict, and in a manner that is consistent with the state’s theory of guilt at trial, we, like the Appellate Court, ‘are not persuaded that the state produced any credible evidence 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.’
Sometimes it seems that all of the good words have already been used. The fact that with an intellectual equivalent of a 3-year old this woman would not even have known what she was refusing or consenting to doesn't seem to have occurred to these judges.
Sparhawk, in the comments made the following observation:
There was no mental 3-year-oldAnd he/she was right, the "3 year old" wording appeared both in the Think Progress article and the CT NBC affilitae that was quoted in the article. Reading the court decision more closely reveals that the "3 year old" was in another case entirely that the court cited in making its decision. The woman in this case had a higher IQ.
The quoted article made an extremely stupid mistake and the diarist repeated it uncritically. See my comment below.
In reaching its determination, the Appellate Division acknowledged that ‘‘there may be situations under which the different factors that cause a victim to become incapable of consent overlap . . . . Indeed, one of the psychologists who testified on behalf of the [prosecution] indicated that while the victim, who is at the high end of the scale which is used to measure profound retardation, has rudimentary communication abilities, there are those on the low end of the scale used to measure profound mental retardation that have none. Such persons may, as a consequence of their mental retardation, or mental defect . . . be physically unable to communicate unwillingness to an act . . . . [In this case], however, the [prosecution] failed to estab- lish that such an overlap exists.’’17 (Citations omitted.) Id., 309–10.Emphasis is mine.
Apologies for the confusion and the repetition of this error.
AsVillanova Rhodes pointed out in the comments, the fault may well lie with the state that brought charges under the wrong statute:
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.So, instead of the judges, our ire should probably be directed at the prosecution team for failure to prosecute under the correct charges.