At first I was angry when I read about a recent decision of the Connecticut Supreme Court overturning a conviction in a case involving a rape victim with severe intellectual disabilities.
Then I began to wonder if the writer of the story was sensationalizing the case as writers are sometimes prone to do. Did the court really rule that a rape victim must “bite, kick, and scratch” in order for a rape conviction to be valid?
The headline of the story read: “Court Rules Severely Disabled Woman Wasn’t Raped Because She Didn’t ‘Bite, Kick or Scratch’ Her Assailant.” In the story, the director of a sexual assault crisis center was quoted as saying “By implying that the victim in this case should have bitten or kicked her assailant, this ruling effectively holds people with disabilities to a higher standard than the rest of the population when it comes to proving lack of consent in sexual assault cases.”
The story was written by Zack Becuchamp. It was published on the website of AlterNet — an online news magazine which aims “to inspire action and advocacy on the environment, human rights and civil liberties, social justice, media, health care issues, and more.”
Zack’s commentary, which called the court’s decision “outrageous,” certainly inspired me into action, but probably not the action he imagined. I decided to carefully read the court’s decision, both the majority opinion and the dissent. I wondered how the court could get the decision so wrong.
Although I have sympathy for the victim, and consider myself to be a disability rights advocate, I was not prepared to condemn the court or to otherwise spout off about its decision, until I dug a litter deeper. Reading the court’s decision seemed like a good first step.
After reviewing the majority opinion and the dissent, and closely examining the footnotes, I came to the conclusion that there was plenty of blame to go around as to why a convicted rapist was set free. But the court was not the primary culprit. It’s more complicated, not only in Connecticut but in other states as well, when it comes to proving that a victim with developmental disabilities was raped.
Prosecutors have a menu of options when it comes to rape cases: sex by force; sex without consent; sex with a minor; sex with someone incapable of consent due to mental disability; and sex with someone incapable of communicating consent or lack of consent. The penalty varies depending on the type of rape conviction.
The statutory requirements to convict under each of these scenarios is different and each requires a different form of proof. Forcible rape would require the prosecution to demonstrate, beyond a reasonable doubt, that the perpetrator used force or otherwise threatened the victim with harm. A defendant who does not use force or the threat of force, can still be convicted of rape if the prosecution shows that the victim did not consent to the sex. Regardless of whether the victim consented or not, a defendant may be convicted of statutory rape (sex with someone under the legal age of consent, which varies from state to state). Those are the more straightforward types of rape options.
Then come the more difficult prosecutions involving sex with adults who have developmental or intellectual disabilities. Did the victim consent or not? Did the victim have the mental capacity to consent even though he or she was chronologically over the age of consent? Or, as this this case, was the victim “physically helpless” which requires a showing that she was incapable of communicating her consent or lack of consent?
The ruling of the Connecticut Supreme Court in this case can be properly understood only by understanding the procedural history of the case and the evidence that was presented in the courtroom.
The twenty-five year old victim lived in an apartment complex with her mother. The defendant, who was the mother’s boyfriend lived nearby He frequently assisted the mother in caring for the victim. The victim got along with him.
According to the court opinion, the victim is a woman with significant disabilities that affect the manner in which she interacts with others. She suffered a brain hemorrhage after being born three months premature, and her disabilities include cerebral palsy, mental retardation and hydrocephalus. She cannot walk and needs assistance in performing the activities of daily living. 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.
In 2006, the victim was attending a day care center. The staff noticed that she looked upset. They asked her what was wrong. Through gestures and by using her communication board, the victim made the staff aware that she had been sexually assaulted by the defendant at her home. A physical exam confirmed that she had been sexually assaulted.
At trial, the director of the victim’s group home testified that the victim could not be manipulated by others. He said the victim is very direct in communicating her feelings about others. The victim’s mother also testified that the victim is able to express her feelings and emotions.
The mother gave an example of the victim’s ability to communicate. She said that the victim did not like the mother’s former husband. When he would come around, the victim would frown and would try to hurt him physically by biting or scratching.
A supervisor at the adult day care program attended by the victim testified that, although the victim was nonverbal, her cognitive abilities were very high and that she was able to communicate her emotions and feelings.
Another staff member at the day care program testified that, despite the victim’s cognitive limitations, she was ‘‘very bright.’’ He stated that she often would call him over to talk, particularly about baseball. When this staff member was asked how he communicated with the victim, he replied, ‘‘I would verbally speak to her, and she would respond either [with] the shrill of her voice . . . or she had a communication board which she keeps on the tray to her wheelchair. She would point to letters to spell out a word. . . . Or she would actually use the computer to write me little messages or little notes, and [we would] talk back and forth [that way].’’
In a normal rape case, the issue of consent or lack of consent is very relevant. The prosecution must prove, beyond a reasonable doubt, that the perpetrator had sex with the victim without her consent. This usually requires the victim to testify at trial. The credibility of the victim becomes central to the case.
Perhaps as a way to avoid the issue of consent, and to diminish the importance of the victim’s credibility as a factor in the case, the prosecution apparently decided not to use the “sex without consent” statute to prosecute the defendant in this case. Similarly, the prosecution chose not to use the statute which establishes lack of consent due to “mental defect.” Both options were available but were rejected by the prosecution. Instead, the prosecutor used the statute which makes it criminal to have sex with a person who is “physically helpless.”
Because that approach was used, the judge instructed the jury that “‘Physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to act.” The judge also told the jury that whether the victim consented to sex or not was irrelevant.
After struggling with the issue of “physically helpless” during deliberations, and asking the court for clarification of that issue, the jury eventually found the defendant guilty. Jurors either had to stretch their understanding of “physically helpless” or set the defendant free. They decided to find that the victim was physically helpless.
On appeal, the Supreme Court had to determine whether the evidence would support a finding that the victim was “physically helpless.” To uphold the conviction, the court would have been required to conclude that the evidence showed the victim was “physically unable to communicate unwillingness to act.” Based on the testimony of the victim’s mother and of the two staff members from the day care center, a majority of justices felt they could not conclude that the victim was physically unable to communicate.
Had the prosecution chosen to use the “sex without consent” statute, the conviction may have been upheld. Just as the victim had told the day care staff, through her communication board, that her mother’s boyfriend had sexually assaulted her, she could have used her communication board to tell the jury the same thing. But the prosecutor used a statute which removed the issue of consent from the case, and put the sole focus on whether the victim was able to communicate or not.
Clearly, the victim was not unconscious at the time of the rape. She witnessed the rape, experienced the rape, and recalled the events of the rape. She communicated those events to the day care staff and to the prosecution team. Despite her cognitive limitations, this “very bright” woman with developmental disabilities was able to communicate her displeasure when she felt displeasure. She was not physically helpless.
So the blame for allowing a rapist to go free, if any needs to be assigned, should be directed at the prosecutor who, for strategic reasons, decided to use a rape statute intended for cases where the victim was unconscious or in a similar condition that rendered her unable to communicate. If this strategic decision had worked, this shortcut would have made it unnecessary for the prosecution to prove lack of consent — something that can be difficult to prove when the victim has developmental disabilities and communication problems. Obviously, the strategy backfired because a majority of judges, unlike the jury, was unwilling to stretch the meaning of “physically helpless” to include a victim with developmental disabilities who does have an ability to communicate and who regularly does so with family members and her support staff.
Prosecuting under the “sex without consent” statute would have required the prosecutor to call the victim as a witness at trial to tell jurors how the defendant had sex with her and how she did not consent to it. Her testimony, through her communication board, would have been time consuming and probably would have been quite exhausting for everyone, including the victim. But there is no indication that it could not have been done. And had it been done, the defendant might now be confined behind bars rather than walking the streets as a free man.
So if responsibility needs to be assigned as to why the defendant is free, I choose to point the finger at the prosecutor, not the Connecticut Supreme Court.
There is also a lesson here about not believing everything we read in a blog or news story, no matter how emotionally or politically invested we may be. When something that appears outrageous comes to our attention, perhaps we should resist the urge to jump on the outrage bandwagon. We should check out the facts. Do a little investigating.
Remember, if something appears too bad to be true, it may in fact be untrue.
Attorney Thomas F. Coleman is the Legal Director of the Disability and Abuse Project.