Why we can’t just make stuff up as we go along, or: Due Process

by Gideon

What started out as a fairly fact specific hyper-technical statutory interpretation of the meaning of a phrase in an extremely narrow statute has ballooned into a general hue and cry about “rape culture” and a disregard for women’s rights.

I wrote last week about the Connecticut Supreme Court’s decision in State v. Richard Fourtin [PDF], which is only the former and has no shades of the latter. But that hasn’t stopped advocacy groups and pageview hungry tabloids like ThinkProgress and the HuffingtonPost from burying their heads in the sand about the boring reality of the opinion and instead pressing on with their fabricated quotes and blatant misrepresentation. Which is why it comes as no surprise that the Hartford Courant – never one to miss an opportunity to drum up page views and advertising revenue through the use of incendiary and sensationalist “opinion” pieces – published this “opinion” piece.

On the one hand, I’m incensed that allegedly reputable news organizations would publish pieces with a blatant disregard for truth and a fundamental – and frankly, frightening – misunderstanding of and disregard for our criminal justice system.

On the other, what better opportunity could there be to perhaps try and educate people and correct these pervasive misconceptions. So I’m going to give this another shot in the hope that maybe one person will walk away with a more accurate understanding of our core fundamental protections and rights.

The opinion piece is fortuitously titled in the form of a question – “He’s Not Guilty Because Disabled Woman Didn’t Fight Back?” – allowing me to respond appropriately: “No”. In order to make this post coherent, I’m going to reproduce her opinion and respond point-by-point.

First, Cindy Luo (the author of the opinion piece) opines:

The Appellate Court claimed, in justifying its decision, that because the defendant could “communicate by gesturing and vocalizing … and that 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,” then “no reasonable jury could have concluded that she was physically helpless at the time of the assault.”

She means ‘complainant’ when she says ‘defendant’, but other than that it’s accurate. Moving on:

Fourtin was sentenced in 2008 to six years in prison for attempted second-degree sexual assault and fourth-degree sexual assault involving the woman, who was then 25 and who has cerebral palsy, mental retardation and hydrocephalus, and cannot talk or walk. The Appellate Court reversed the convictions in 2009 and ordered the lower court to acquit Fourtin because the prosecution didn’t prove the woman was “physically helpless.”

Still correct. Next:

However, physical helplessness is not a requirement for rape.

And this is where it begins to fall apart. Because, you see, Ms. Luo, it is a requirement for “rape” under the subsection he was charged with. In case you were unable to find the pertinent subsection and read it, I’ll reproduce it for you here:

(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (3) such other person is physically helpless

See, that’s all he was accused of doing. The rest of the stuff in that statute? Irrelevant. He wasn’t accused of doing any of that. So, contrary to her assertion, physically helplessness is a requirement for rape. It says so right in the statute. As I explained in my previous post, physical helplessness is a legal term of art with a very specific definition which requires that the victim be “physically unable to communicate unwillingness”. It doesn’t mean whatever else you want it to mean. It has a specific definition and we have to stick to that definition.

Further down the rabbit hole:

Although designed to protect those incapacitated by drugs or other means, physical helplessness should not have been the focus of this trial. Other factors such as the woman’s disabilities and that Fourtin was her mother’s boyfriend and occasional caregiver should have been considered.

And this is the part where we introduce Ms. Luo to the Sixth and Fourteenth Amendments to the United States Constitution, which I’m sure she’s familiar with. The Sixth Amendment to the United States Constitution states, in relevant part:

In all criminal prosecutions, the accused shall enjoy the right [...] to be informed of the nature and cause of the accusation [...]

The Sixth Amendment is applied to the States through the Fourteenth Amendment, which states in relevant part:

nor shall any State deprive any person of life, liberty, or property, without due process of law

What that means is that in every criminal prosecution in every state of this country, whether it be for shoplifting, murder, drunken driving or rape of a disabled woman, the State must, prior to trial, inform the accused of the specific allegations against him and the specific law which he is alleged to have broken.

In this case the law he was alleged to have broken was the one involving sexual intercourse with someone who is physically helpless. The right to have notice of the specific charges is, as the supreme court puts it, sacrosanct:

an accused in a criminal proceeding has the right to be informed of the nature and cause of the accusation against him, and that the offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at his trial; these principles of constitutional law are inveterate and sacrosanct. U.S. Const., amend. VI; Conn. Const., art. I, § 8; 2 Wharton, Criminal Procedure (12th Ed.) § 258.

State v. Sumner. We do not have a “moving target” theory of justice. We, in our quest to have a system of fairness and integrity, have mandated that we tell defendants what crime we’re accusing them of committing and then give them the opportunity to defend against just that. I cannot think of anything more fundamental to any system of justice. To argue otherwise is to argue for secrecy, kangaroo courts and a dismantling of our time-honored standard of proof beyond a reasonable doubt.

The mere mention of the idea that we can and should convict someone for something that we give them no opportunity to defend against is abhorrent. How can we be a civilized society, a fair society, the leader of the free world even, if we condone a system of justice where the only goal is to lock away people whom the populace doesn’t like regardless of whether there is any proof of the commission of those acts? What kind of world would we live in if we were to accuse someone of shoplifting a bag and upon completion of the trial, ask a jury to find him guilty of stealing a car instead?

So, no, Ms. Luo, her disabilities and the fact that he was her mother’s boyfriend and occasional caregiver should not have been considered because they have absolutely no bearing on whether she was “physically helpless”. The focus properly should have been only her physical inability to communicate. To suggest otherwise is mindboggling.

I wish it ended here, but it doesn’t:

Fourtin’s argument hinged upon the reasoning that because the 25-year-old woman could have indicated her refusal with physical resistance, the fact that she didn’t means that she consented.

This makes my brain hurt because it is preceded by a paragraph that correctly states that the statute does not care about whether a person consented or not. And yet here she makes a mess of comprehending Fourtin’s argument on appeal.

The argument, simply, once again, is that if she could have indicated her refusal physically, then she is not physically unable to indicate refusal. The State had alleged that she was physically unable to refuse. Fourtin argued that she was physically able to refuse. As Mark Bennett has often chided me: I can explain it to you, I cannot understand it for you.

The reality that the State failed to/chose not to allege a violation of a different, perhaps better fitting crime, is not something the Supreme Court should be blamed for.

You know where this is going:

Even though she had no means of verbal communication; even though there is absolutely no evidence that the woman actually gave her consent. The fact that the case didn’t focus on this question, but instead concentrated on how she didn’t show refusal, goes to show how easily society still blames the victim.

It also goes to show how easily the Court was correct and how spectacularly you have failed at understanding a simple legal issue. If the State alleges that I shot someone with a .22 handgun and presents no evidence that the object I shot with was, indeed, a .22 handgun and if, in fact, evidence is presented that it was a banana, please explain why I should be found guilty?

Due Process of Law, a principle that we should all hold dear, mandates a verdict of not guilty, just as it would for Fourtin if any Court were to suddenly, somehow, after the fact decree that he was guilty of another crime that he did not have the opportunity to defend against.

This is one of the bedrock principles of our Constitution: we do not have trials in secret, or by ambush. There is no more Star Chamber.

Ms. Luo argues that the “case didn’t focus on [the] question” of whether she actually gave any consent, not three sentences after stating that consent is not a requirement in this statute. I don’t know how else to explain this.

But perhaps Ms. Luo also missed this part of the Court’s opinion:

the failure of the state to present any evidence probative of whether the [victim] was unable to use these forms of communication at the time of the alleged assault[.]

Her argument in that last paragraph I quoted is a red herring born of a misunderstanding. Her verbal communication is irrelevant in this case. But even granting her that, the inescapable fact is that there was no evidence introduced that she was physically helpless at the time of the assault.

There are certainly things Fourtin may well be guilty of: sexual intercourse with someone who, due to a mental disability, is legally unable to give consent comes to mind.

But he was not accused of that crime. And as much as we dislike him and want to, we cannot now, ex post facto convict him of that.

Update: Former Chief Justice Ellen Ash Peters, who authored the opinion of the Appellate Court, says it best:

We reverse the defendant’s conviction in this case because we are not persuaded that the state produced any credible evidence that the complainant 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. Whatever other provision of our criminal code the defendant may have violated, the state did not prove that he committed the crimes for which he was put to trial.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty.

Update: The Constitution guarantees protection to all of us: those who have committed crimes, those who haven’t but accept that it’s possible they could and those that mistakenly believe that they never can. These treasured and trumpeted Constitutional protections do not discriminate in the shelter they provide based on how offensive the person seeking that refuge is. And it does not permit us to do so either.

We cannot alter the Constitution midstream because we don’t like someone. Today, you don’t like Fourtin. Tomorrow, the State might not like you.