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A ruling has come down from the Connecticut Supreme Court today, as reported by Think Progress:

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.

UPDATE:
Sparhawk, in the comments made the following observation:

There was no mental 3-year-old
The quoted article made an extremely stupid mistake and the diarist repeated it uncritically. See my comment below.
And 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.
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.

Originally posted to Susan Grigsby on Wed Oct 03, 2012 at 11:34 AM PDT.

Also republished by Feminism, Pro-Feminism, Womanism: Feminist Issues, Ideas, & Activism and Sluts.

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Comment Preferences

  •  !@##$%^&* (14+ / 0-)

    Words fail me.  The words that don't fail are unprintable in a public post.

    WHAT were they THINKING?

    "Religion is what keeps the poor from murdering the rich."--Napoleon

    by Diana in NoVa on Wed Oct 03, 2012 at 11:40:18 AM PDT

  •  Then it is like raping a child, automatically (9+ / 0-)

    non consensual,   How low some people will go never ceases to amaze me.

    "Another world is not only possible, she is on her way. On a quiet day, I can hear her breathing." Arundhati Roy

    by LaFeminista on Wed Oct 03, 2012 at 11:47:02 AM PDT

  •  My effing State (12+ / 0-)

    and what an abomination worthy of Todd Akin ilk.

    How many women without any special circumstances do not yell, bite, fight back because they are fucking terrified or threatened with a weapon.

    Utter travesty.  

    " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Wed Oct 03, 2012 at 11:48:50 AM PDT

    •  Years and years of excusing the rapist, and this (6+ / 0-)

      is where that leads. The fault lies with the victim.

      "Another world is not only possible, she is on her way. On a quiet day, I can hear her breathing." Arundhati Roy

      by LaFeminista on Wed Oct 03, 2012 at 11:50:40 AM PDT

      [ Parent ]

      •  "Legitimate rape" strikes again. (8+ / 0-)

        The Court ruled that the state did not present persuasive evidence that the victim was unable to communicate to her attacker that she did not want to engage in sexual intercourse. She should have bitten him.

        Or something.

        "I cannot live without books" -- Thomas Jefferson, 1815

        by Susan Grigsby on Wed Oct 03, 2012 at 11:54:23 AM PDT

        [ Parent ]

      •  I have a colleague (11+ / 0-)

        who deals with rape victims and their families.  Can't tell you how many infants and toddlers who were raped which this court would deem complicit with the rapist under this argument.

        Fuckers.  I'm livid.

        " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

        by gchaucer2 on Wed Oct 03, 2012 at 11:54:25 AM PDT

        [ Parent ]

        •  It is completely insane. (6+ / 0-)

          "Another world is not only possible, she is on her way. On a quiet day, I can hear her breathing." Arundhati Roy

          by LaFeminista on Wed Oct 03, 2012 at 11:57:19 AM PDT

          [ Parent ]

        •  Well, children are different because they are (2+ / 0-)
          Recommended by:
          a2nite, Susan from 29

          the property of their parents.  Ergo, if they are abused, the parents have a cause of action and can lodge a formal complaint.

          Keep in mind that simple assault, which does no permanent and/or visible damage, is considered a misdemeanor and has to be witnessed by law enforcement to be charged. Which is why paddling is legally permitted, unless it causes bruises or breaks the skin.

          The U.S. is an abusive culture. The culture of obedience which demands the subordination of the individual is inherently abusive, but we call it virtue.  Is not obedience a virtue? Do not spouses promise to obey?

          Having control over another person -- i.e. an ownership interest -- is the sop which has long been used to disguise that human rights were being denied.

          "You can own things, but you belong to me." Property rights trump human rights, still. When males reach their majority, they are still obligated to register for involuntary servitude.

          We organize governments to provide benefits and prevent abuse.

          by hannah on Wed Oct 03, 2012 at 12:34:52 PM PDT

          [ Parent ]

      •  No, the fault lies with the drafters of the (4+ / 0-)

        statute.  The remedy has to be sought in the legislature.
        Both the legislative and executive branches have fallen into the habit of doing shoddy work under the rubric of "letting the courts sort it out."
        When citizens demand explanations from law enforcement agents as to which laws they are enforcing, the response they have been taught to give is, "tell it to the judge."

        When legislation is found wanting, they blame the executive who signed it and agreed to try to enforce it.

        ALEC has accurately devined that the legislative bodies are the weak link in democracy -- that government by the people is most easily derailed by suborning the lawmakers and getting them to bite the hand that feeds them.

        That the bodily integrity of every person needs to be respected and protected is a principle that many of our lawmakers find unattractive.  They want to be able to regulate other people's bodily functions. "Hands off" is not the norm.  But, we can aim for that.
        Instead of focusing so much on life and death, we should be about preventing abuse.

        We organize governments to provide benefits and prevent abuse.

        by hannah on Wed Oct 03, 2012 at 12:25:14 PM PDT

        [ Parent ]

  •  time to OCCUPY the CT Supreme Court. (5+ / 0-)

    They need to hear from a very large and very noisy crowd, ASAP, especially including disability rights advocates.

    This abomination cannot be allowed to stand.  

    "Minus two votes for the Republican" equals "plus one vote for the Democrat." Arithmetic doesn't care about their feelings either!

    by G2geek on Wed Oct 03, 2012 at 11:50:26 AM PDT

  •  legal strategy: (7+ / 0-)

    Take it to the USSC on the grounds that the CT statute violates the Americans with Disabilities Act.  

    Equal protection under the law.

    This should be a slam-dunk, dammit.  

    "Minus two votes for the Republican" equals "plus one vote for the Democrat." Arithmetic doesn't care about their feelings either!

    by G2geek on Wed Oct 03, 2012 at 11:51:42 AM PDT

    •  The article at Think Progress points out (4+ / 0-)

      near the end that this ruling is saying that people with disabilities should be held to a different standard.

      I hope they do take it to the USSC, but what happens in the meantime? Is this guy released? Will they try him again or has double-jeopardy attached?

      “Mitt Romney is the only person in America who looked at the way this Congress is behaving and said, ‘I want the brains behind THAT operation.’ ” — Tom Perriello

      by hungrycoyote on Wed Oct 03, 2012 at 12:18:05 PM PDT

      [ Parent ]

      •  Double jeapardy has attached (5+ / 0-)

        the only hope is a federal case and that is dicey re: sexual crimes -- age, abduction, hate crime, etc. oriented.  It would make a very good precedent re: intellectual age.

        " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

        by gchaucer2 on Wed Oct 03, 2012 at 12:24:10 PM PDT

        [ Parent ]

      •  IANAL, but... (3+ / 0-)

        .... there are a couple of ways this could go:

        First of all, assume that the USSC rules that this was a violation of equal protection and the ADA.  

        Now one of three things become likely:

        1)  If the entire statute is thrown out, the conviction that relied upon other language in the statute is also null and void.  However a replacement statute with language that passed constitutional muster could not be applied retroactively (ex-post-facto law is unconstitutional, as well it should be).   Thus the guy gets to walk.

        2)  Some kind of "severability" is invoked that removes the offending language only and lets the rest of the statute stand, in such a manner that the conviction is also able to stand.

        3)  The USSC ruling also addresses the language "for any other reason (is) physically unable to communicate," by holding that CP with mental age of 3 qualifies under that wording.  This would be the most limited type of ruling by the USSC, and it would also enable the conviction to stand.

        Basically the only way the guy gets to walk is if the USSC sides with the CT SC on this, or if it throws out the entire statute.  

        So there's a good likelihood that the defendant is going to remain behind bars after all is said & done, unless he gets out on bail during appeal and then scoots to points unknown.

        But also keep in mind:  The same set of circumstances and legalisms also apply to patients with dementia, who are rapidly increasing in numbers.   And this may be the key to the kingdom:  everyone knows someone whose family has been hit by Alzheimer's.  The thought of Grandma, or Mom, in a nursing home, getting raped (and YES this has happened, and will continue to happen) and being unable to repel their attacker, and their attacker going free, is enough to put most people in a state of rage as in "shoot the bastard who did this to my mother!"    

        I have to believe the Court will at some level be swayed by that.  If not, then we're going to see an awful lot of cases of 2nd or 3d degree murder (defended as justifiable homicide?) arising from nursing home rapes, and those are going to work their way through the court system as well.  

        "Minus two votes for the Republican" equals "plus one vote for the Democrat." Arithmetic doesn't care about their feelings either!

        by G2geek on Wed Oct 03, 2012 at 12:35:38 PM PDT

        [ Parent ]

  •  The next rape this bastard (7+ / 0-)

    commits is sanctioned by this Supreme Court.  I'm humiliated to be a Nutmegger.  Our SC court justices are appointed (which I think is a good thing).  Appointment or election can't cure abominable amorality.  I hope they are trashed for months in the press.  I can't think of one person -- Democrat or Republican -- who would find this ruling acceptable.

    " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Wed Oct 03, 2012 at 11:52:23 AM PDT

  •  no offense to the poor woman (8+ / 0-)

    but if they had asked her to have sex in the courtroom she probably couldn't have responded.  And since she can't communicate, how do we know she didn't gesture no?  We have the defendant's word for this, someone who would engage in sex with someone so severely handicapped that they can't communicate?

    Its funny in the ironical not haha sense, that this woman would have been deemed incompetent to exercise any legal right, make a contract, make a will, bargain for services of any kind, but she's competent to consent to sex.  How fucked is that court.

  •  I hope this diary (5+ / 0-)

    is selected by Community Spotlight.  This is just a devastating ruling in a blue state.

    I now have to read the opinion -- and especially the dissent.

    " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Wed Oct 03, 2012 at 12:07:51 PM PDT

  •  WTF!?!?! (6+ / 0-)

    Somebody please explain this. Please.

    A society is judged by how well it cares for those in the dawn of life, the children. By how well it cares for those in the twilight of life, the elderly. And, by how well it cares for those on the edge of life; the poor, the sick, and the disabled.

    by BobBlueMass on Wed Oct 03, 2012 at 12:11:54 PM PDT

  •  I had to read the article quoted at the (3+ / 0-)

    beginning of the diary over three times. I'm stunned that any adult, much less someone trained in the law came to that conclusion.

    The conviction was thrown out or overturned? Will they retry him or is and free and it's over?

    “Mitt Romney is the only person in America who looked at the way this Congress is behaving and said, ‘I want the brains behind THAT operation.’ ” — Tom Perriello

    by hungrycoyote on Wed Oct 03, 2012 at 12:15:20 PM PDT

  •  The ruling mentions a particular point of law (5+ / 0-)

    and it leaves me wondering why they chose to use it and not another. The ruling mentions the defendant

    was convicted of attempt to commit sexual
    assault in the second degree in violation of General
    Statutes §§ 53a-71 (a) (3)1 and 53a-49 (a) (2),2 and sexual
    assault in the fourth degree in violation of General Statutes
    (Rev. to 2005) § 53a-73a (a) (1) (C),3 both of which
    require proof beyond a reasonable doubt that the victim,
    4 at the time of the offense, was physically helpless.5
    When I look up that first one...
    Sec. 53a-71. Sexual assault in the second degree: Class C or B felony. (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than three years older than such other person; or (2) such other person is mentally defective to the extent that such other person is unable to consent to such sexual intercourse; or (3) such other person is physically helpless;
    I wonder if the prosecution blundered on this one by trying (a) (3) and not (a) (2), which seems to be what everyone (including myself) is thinking of -- how can they call it 'consent' from a functional three-year-old?

    “I have a quantum car. Every time I look at the speedometer I get lost.” -- Steven Wright

    by tytalus on Wed Oct 03, 2012 at 12:31:33 PM PDT

    •  Thanks for this comment (1+ / 0-)
      Recommended by:
      Susan from 29

      It prompted me to investigate.

      The answer to your question is: There is no person with the intelligence of a three-year-old involved in this story at all.

      I commented elsewhere in the thread.

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Wed Oct 03, 2012 at 03:21:07 PM PDT

      [ Parent ]

    •  You are right to wonder about the prosecution. (2+ / 0-)
      Recommended by:
      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.
  •  The functional intelligence of a three-year-old (5+ / 0-)

    and they think she consented? How could she understand what he was gonna do and therefore indicate lack of consent?

    This is insane. When did the Connecticut Supreme Court move to Wonderland?

    The last time we mixed religion and politics people got burned at the stake.

    by irishwitch on Wed Oct 03, 2012 at 12:39:58 PM PDT

    •  They moved there (2+ / 0-)
      Recommended by:
      Susan from 29, soros

      Because the author of the news article linked to by the diarist made a huge almost libelously stupid mistake and the diarist didn't bother checking the facts for herself.

      The alleged victim in question here does not have the mental capacity of a three year old. The court refers to her as having several issues, one of which is "mental retardation".

      The court decision, all of which I read (but the diarist and most commenters here did not) talks about another case that includes a functional three-year-old. That case, an entirely other case with other people involved was being used as a precedent to try to understand the (somewhat murky and complex) issue of whether this person was capable of communicating non-consent in the face of her physical (not mental) disabilities. Her mental disabilities are barely mentioned in the case and the things she is described as doing in the case (you know, if you read it) are not things a three year old could possibly do.

      Go read the decision for yourself. It's right there on page 11.

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Wed Oct 03, 2012 at 03:10:38 PM PDT

      [ Parent ]

  •  An Absolutely Shocking & Distressing Ruling! (3+ / 0-)

  •  Oh my gawd. I too have a 26 year old daughter (1+ / 0-)
    Recommended by:
    Susan from 29

    with cerebral palsy and this is just mind numbing unbelievable.  These so-called judges are a disgrace to their profession and I'm hoping one or more can somehow be impeached.  

    What is wrong with these people?  They let this rapist go free so he can do what...rape another woman?  What a bunch of disgusting misogynists.  I won't say what I'm thinking ought to be done with these clowns as I'm not in the mood for any donuts, but this is just beyond what constitues a civilized society.

    "It took us a couple of days because I like to know what I'm talking about before I speak." President Barack Obama 3/24/09

    by sfcouple on Wed Oct 03, 2012 at 02:59:14 PM PDT

    •  What is wrong with it apparently, is that the (1+ / 0-)
      Recommended by:
      Villanova Rhodes

      state brought charges under the wrong statue, as Villanova Rhodes commented above:

      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.

      "I cannot live without books" -- Thomas Jefferson, 1815

      by Susan Grigsby on Wed Oct 03, 2012 at 04:47:03 PM PDT

      [ Parent ]

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