Don’t Have Severe Disabilities
Justices ruled, 4-3, that despite evidence that the 26-year-old woman cannot speak and has little body movement, there was no evidence she could not communicate her refusal to have sex with the defendant, Richard Fourtin Jr.
The 26-year-old woman in question has cerebral palsy, mental retardation, and hydrocephalus. The appellate court overturned Fourtin’s rape conviction because:
[W]hile the complainant’s disabilities rendered her unable to communicate verbally, she could communicate by gesturing and vocalizing and through the use of a communication board, and … witnesses testified that she could indicate her displeasure by means of gestures, physical aggression - including biting, kicking and scratching - and by making screeching and groaning sounds. The court concluded that, given the uncontradicted evidence presented at trial that the complainant could communicate using these nonverbal methods and the state’s failure to show that she was unable to use such forms of communication at the time of the alleged assault, no reasonable jury could have concluded that she was physically helpless at the time of the assault.
No reasonable jury could have concluded that she was physically helpless.
You know, maybe that’s even true, in the narrowest sense. It’s really easy for currently able-bodied people to falsely assign helplessness to people with disabilities, and it’s important that we don’t erase this woman’s abilities, life experience, and communication style.
But you know what else it’s easy for currently able-bodied people to do to people with disabilities? Rape them.
And as far as I can tell, no reasonable jury could conclude that Richard Fourtin, Jr., didn’t rape the victim, who’s referred to in court documents as “L.K.” I know this is probably just a legalese thing, but it’s still absolute bullshit to call the 12 people who voted to convict Fourtin “unreasonable” because they didn’t interpret “physically helpless” so narrowly as to render it indistinct from “unconscious.”
An amicus brief filed by Connecticut disability advocates (PDF) covers just about everything else I can barely find words to scream about. In addition to quoting the Justice Department’s Office for Victims of Crime, which reports that ”68 percent to 83 percent of women with developmental disabilities will be sexually assaulted in their lifetime,” the brief says:
The victim in this case is an extremely brave woman. She survived a sexual assault. She reported that assault to her caregivers despite the fact that her assailant was her mother’s boyfriend. She endured an intrusive medical examination, made all the more difficult given the recent assault… And most significantly, she told her story in court.
L.K. testified via closed circuit camera, using “a communication board that contained both letters and numbers and symbols for ‘yes’ and ‘no,’” as well as “icons for commonly-used phrases” and anatomical dolls. And that created, as the brief puts it, “the ultimate catch-22.” Without her testimony, they couldn’t have prosecuted Fourtin at all. (One can safely presume he was counting on that, in fact.) But it was her testimony, using numerous accommodations, that convinced the judges she wasn’t “physically helpless.”
Yeah, there was also that testimony in court about her ability to bite, screech, kick, scratch, etc.—but that came from L.K.’s mother, who, you may have noticed, was dating the man who raped her daughter.
Oh yes, and then there’s this: “Additionally, by effectively requiring the victim to kick or scratch to communicate lack of consent, the Appellate Court imposed a requirement that she physically resist her assailant. This is a requirement that is not imposed on any rape victim.”
No shit. As hard as it is to successfully prosecute rape in this country under any circumstances, at least we don’t technically demand that victims prove they fought kicking and screaming. (Which is good, since in some cases, fighting back might mean being murdered as well as raped.) But apparently, according to these four justices, if you’re unable to speak and have limited mobility (in court, L.K.’s hands sometimes had to be splinted to allow her to point), as well as severe cognitive disabilities, you must further risk your safety to leave a mark on your rapist.
I mean, how else is a reasonable jury supposed to know you’re not a lying whore who wanted it?
I wish I could tell you cases like this are so rare that this shocks and surprises me, but I don’t feel like being a liar today. Glad to see this getting coverage and attention, but will it lead to meaningful and systemic change for disabled rape victims?
Unsurprisingly, it is really difficult to get statistics on sexual assault for people with disabilities, but some studies suggest as many as 80% of women with severe intellectual and cognitive disabilities, like L.K., experience sexual assault at least once in their lifetimes.
