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Don't You Want to be "Safe"?

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40hz:
I'm not even sure what the word 'safe' means any more in the wake of the decision in the case of State of Connecticut v. Fourtin rendered by the wise and benevolent Supreme Court of the State of Connecticut.

I'll provide a link to a good article which also provides links to the actual ruling. But please be forewarned this is one of the singularly most disgusting travesties of justice ever perpetuated by a US court. It involves a rape case. And it's one of those stories about judicial interpretation so extreme and completely divorced from any shred of common decency that it boggles the imagination. If you're easily upset - or not comfortable possibly experiencing a brief episode of blind rage like I did - do yourself a big favor and skip this one.

Excerpt from article below. Link to full article here.

Reader discretion advised.By now many of you have seen the articles on the atrocious Connecticut State Supreme Court decision to overturn the conviction of Richard Fourtin, the man accused of raping a physically disabled woman. In a 4-3 ruling, they decided that the victim, a woman with cerebral palsy who can barely move, cannot speak, and is severely mentally disabled, did not put up enough of a fight to indicate that the sex that occurred was not consensual.

This is a difficult thing to write about in a rational manner without things deteriorating into incoherent swearing and calling down the wrath of ancient, forgotten gods against the justices who voted to overturn this conviction. I am the parent of an autistic child who at the age of five, is barely verbal and incapable of communicating simple facts about what happened in kindergarten that day. This crime, and the subsequent ruling to overturn the conviction, is the stuff of my nightmares and those of anyone who has a loved one with a serious disability.

If the reason for overturning this conviction came in the form of new forensic evidence exonerating Fourtin or some other new information that cast doubt on his involvement or something along those lines, it would simply be justice served. But the reason that the justices gave for overturning the conviction was that the victim did not qualify under the law as “physically helpless.”

That’s right. I couldn’t make this up if I tried.

If you feel like reading the ruling opinion, you can. It spends several pages dissecting the legalistic definition of “physically helpless” and apparently, being completely nonverbal (relying on grunting and occasional use of a communication board), and having an extremely limited ability to move due to cerebral palsy, does not, in these judges’ minds, qualify as “physically helpless” because she could have screeched, bitten, kicked, or scratched to communicate that she did not want sex. These are the same justices, by the way, who sat through four days of the victim’s laborious testimony watching her slowly and painfully use her one working finger to respond to questions with her communication board. They watched this testimony and concluded she could have really put up more of a fight.

   ‘‘It is apparent that the physical helplessness contemplated by the statute requires more than a disease causing physical paralysis.’’
--- End quote ---


 :'(

TaoPhoenix:
Then there was the woman who got arrested because she protested the TSA patting down her daughter. I won't even bother with a link because a 12 second search will pull it up if anyone wants yet more depressing news. Basically the headline speaks for itself.
-TaoPhoenix (October 26, 2012, 08:51 PM)
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I saw that. Shameful. It's now criminal to protect your children from child molesters. Sick.
-Renegade (October 26, 2012, 09:00 PM)
--- End quote ---

How dare you! They are Government Agents keeping you safe! Therefore they can never ever be abusers!

Renegade:
I'll provide a link to a good article which also provides links to the actual ruling. But please be forewarned this is one of the singularly most disgusting travesties of justice ever perpetuated by a US court. It involves a rape case. And it's one of those stories about judicial interpretation so extreme and completely divorced from any shred of common decency that it boggles the imagination. If you're easily upset - or not comfortable possibly experiencing a brief episode of blind rage like I did - do yourself a big favor and skip this one.
-40hz (October 26, 2012, 10:04 PM)
--- End quote ---

Seems to me like the only remaining questions for any semblance of justice would be to pick which of the 4 judges gets lynched first, and whether they get lynched before or after the "defendant".

What can one possibly say when their government and judicial branches of government so horribly betray the public trust?
How can anyone reasonably be expected to have any respect for the "law" when it has become so horribly twisted like this?
How is it that we are under any kind of moral obligation to support this "authority" (i.e. surrender our power) when they sit idly by and watch the weak get raped, literally and metaphorically?

...experiencing a brief episode of blind rage like I did...
-40hz (October 26, 2012, 10:04 PM)
--- End quote ---

I think I'm over rage now. I very rarely flip out anymore. Instead, I just cry.

TaoPhoenix:
I'm not even sure what the word 'safe' means any more in the wake of the decision in the case of State of Connecticut v. Fourtin rendered by the wise and benevolent Supreme Court of the State of Connecticut.

I'll provide a link to a good article which also provides links to the actual ruling. But please be forewarned this is one of the singularly most disgusting travesties of justice ever perpetuated by a US court. It involves a rape case. And it's one of those stories about judicial interpretation so extreme and completely divorced from any shred of common decency that it boggles the imagination. If you're easily upset - or not comfortable possibly experiencing a brief episode of blind rage like I did - do yourself a big favor and skip this one.

Excerpt from article below. Link to full article here.

 :'(
-40hz (October 26, 2012, 10:04 PM)
--- End quote ---

Okay, I'll cash in one of my goodwill points on this one. I first noticed the source of the article, and it sent an alarm bell in my head, so I spent some time reading the actual case ruling. At issue is what I feel is the much larger theme in all of law of whether courts should (my phrasing coming up) "issue rulings in the spirit of what social decency thinks the law should say", and the more narrow "issue rulings in the sense of what the law does say".

From a historical sense, remember the old Civil War sense called "States Rights"? In one element that's what is going on here too, the downside of States Rights. Basically no one reads actual texts of the state laws until they show up in a court case that goes *against* common decency. I'm in the awful position of saying that the Court might be "technically" correct *because the law has the horrible flaw which produced this result*. So in my view the next thing the activists should do is point at this case to fix the law with enough language that all the parties of this case agree that the outcome would have been what it "should have been". (Maybe something like "When the Recipient of advances has *difficulty communicating*, additional diligence on the part of the Offeror to show beyond a reasonable doubt that the advances were both requested and desired.")

When one of these kinds of cases goes wrong, it would be interesting if someone (some public defense foundation?) triggered a national law review of the exact same case against the laws of all the states in a charts to then see which states have a flaw that should be fixed legislatively.

Whew! No one seems to be saying these Justices are happy about their ruling! My bet is that they saw an even more disastrous loophole lurking if they ruled the other way, and you know that it only takes one bad ruling with a legal shark waiting to find something truly nasty to perpetrate.

Renegade:
Okay, I'll cash in one of my goodwill points on this one.
-TaoPhoenix (October 27, 2012, 03:59 AM)
--- End quote ---

Cashed. ;)

Okay, I'll cash in one of my goodwill points on this one. I first noticed the source of the article, and it sent an alarm bell in my head, so I spent some time reading the actual case ruling. At issue is what I feel is the much larger theme in all of law of whether courts should (my phrasing coming up) "issue rulings in the spirit of what social decency thinks the law should say", and the more narrow "issue rulings in the sense of what the law does say".

From a historical sense, remember the old Civil War sense called "States Rights"? In one element that's what is going on here too, the downside of States Rights. Basically no one reads actual texts of the state laws until they show up in a court case that goes *against* common decency. I'm in the awful position of saying that the Court might be "technically" correct *because the law has the horrible flaw which produced this result*. So in my view the next thing the activists should do is point at this case to fix the law with enough language that all the parties of this case agree that the outcome would have been what it "should have been". (Maybe something like "When the Recipient of advances has *difficulty communicating*, additional diligence on the part of the Offeror to show beyond a reasonable doubt that the advances were both requested and desired.")

When one of these kinds of cases goes wrong, it would be interesting if someone (some public defense foundation?) triggered a national law review of the exact same case against the laws of all the states in a charts to then see which states have a flaw that should be fixed legislatively.

Whew! No one seems to be saying these Justices are happy about their ruling! My bet is that they saw an even more disastrous loophole lurking if they ruled the other way, and you know that it only takes one bad ruling with a legal shark waiting to find something truly nasty to perpetrate.
-TaoPhoenix (October 27, 2012, 03:59 AM)
--- End quote ---

I'm not so sure that the courts were technically correct. Maybe.

The fact is that she is severely mentally retarded. Sure, she can kick and scream in protest in situations that she is familiar with. Less familiar situations? Well, who knows. Nothing in the ruling there hit that point. Dunno.

Even if they were technically correct, the jury gets to interpret the law any darn way they want. They get instructions from the judge, but they are under no obligation to follow those directions exactly. The obvious case is actually the opposite, where a jury find someone innocent - it's called jury nullification.

So, what's the opposite of jury nullification? And would that even make sense?

Clips from the rulinghttp://www.jud.ct.gov/external/supapp/Cases/AROcr/CR307/307CR83.pdf

‘‘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.7 To manifest
her displeasure, she can kick, bite and scratch. The
[victim] can also vocalize her feelings by groaning or
screeching.

--- End quote ---


I would take it that those are situations that she has been exposed to and understands...


Finally, the prosecutor also presented the testimony
of two physicians, both of whom previously had examined
the victim, regarding their ability to communicate
with her. Jose Reyes, an obstetrician and gynecologist,
testified that when he treated the victim for dermatitis
in her genital area in 2005, he communicated with the
victim through S because he was unable to communicate
with the victim directly. The prosecutor also asked
James Bovienzo, an emergency department physician
who had examined the victim after the alleged sexual
assault, whether he was ‘‘able to discuss matters with
[the victim] while [he was] involved in collecting any
evidence in this case . . . .’’ Bovienzo replied that
‘‘[t]he patient was noncommunicative.’’11

--- End quote ---

Appears that some situations make her noncommunicative?

The state opposed the motion, arguing that the issue
of physical helplessness and the question of whether the
victim was unable ‘‘to communicate her wishes’’ was
a question of fact for the jury. The trial court denied
the defendant’s motion on the ground that the state had
presented sufficient evidence to allow the matter to be
decided by the jury.

--- End quote ---

I must say though, that it is better for a court to rule someone innocent after a guilty verdict than to set aside a finding of innocence and rule the defendant guilty.

The defendant appealed to the Appellate Court,
claiming that the state had failed to adduce sufficient
evidence to prove that the victim’s disabilities rendered
her physically helpless within the meaning of § 53a-65
(6). State v. Fourtin, supra, 118 Conn. App. 47. The
defendant argued that the state ‘‘[had] not alleged that,
at the time . . . [he] assaulted the [victim], she was
unconscious, intoxicated, asleep or for some other reason
unable to communicate nonverbally, such as by
kicking, scratching and screeching. The defendant
maintain[ed], therefore, that, even viewing the evidence
at trial in favor of the state, the record [did] not establish
beyond a reasonable doubt that the [victim] was physically
unable to communicate [her] unwillingness to an
act, as § 53a-65 (6) requires.’’ (Internal quotation marks
omitted.) Id., 48.

--- End quote ---

Letter of the law...

Before we can determine whether the state presented
sufficient evidence to prove that the victim was ‘‘physically
helpless,’’ however, we first must consider the
meaning of that statutory term. Because the state’s
claim raises an issue of statutory interpretation, we
exercise a plenary standard of review. E.g., State v.
Courchesne, 296 Conn. 622, 668, 998 A.2d 1 (2010).
Pursuant to General Statutes § 1-2z, we begin our analysis
with ‘‘the text of the statute itself and its relationship
to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the meaning
of the statute shall not be considered.’’

As a preliminary matter, it bears emphasis that no
one would dispute that the victim is physically helpless
in the ordinary sense of that term. Physical helplessness
under § 53a-65 (6), however, has a highly particularized
meaning that is unrelated to whether a person is physically
able to resist unwanted sexual advances or mentally
able to understand when to resist such advances.
Rather, under § 53a-65 (6), a person is physically helpless
if they are ‘‘unconscious or for any other reason
. . . physically unable to communicate unwillingness
to an act.’’ (Emphasis added.) Our case law, and the
case law of other jurisdictions, makes clear that, under
this definition, even total physical incapacity does not,
by itself, render an individual physically helpless.14

--- End quote ---

And now brains begin falling out...


In State v. Hufford, 205 Conn. 386, 397–99, 533 A.2d
866 (1987), for example, we rejected the state’s claim
that the victim, who was totally physically restrained,
was physically helpless as that phrase is statutorily
defined. In Hufford, the victim allegedly was sexually
assaulted by the defendant, Steven H. Hufford, an emergency
medical technician, while she was being transported
to the hospital by ambulance. Id., 390. Although
the victim was unable to resist the alleged sexual assault
because she was restrained on a stretcher; id., 390,
393; this court rejected the state’s claim that she was
physically helpless because she repeatedly told Hufford
to stop touching her. Id., 398–99. We explained that,
because the victim ‘‘was not unconscious, we [were]
concerned with whether she was physically able to
communicate her unwillingness to the act.’’ Id., 398. We
concluded that the word ‘‘communicate’’ was plain and
unambiguous, and meant ‘‘to make known: inform a
person of . . . speak, gesticulate . . . to convey information.’’
(Internal quotation marks omitted.) Id., quoting
Webster’s Third New International Dictionary.
Because the victim in Hufford was able to communicate
her lack of consent to Hufford, the state failed to satisfy
its burden of proving the essential element of physical
helplessness. State v. Hufford, supra, 398–99; see also
People v. Orda, 180 Misc. 2d 450, 454, 690 N.Y.S.2d 822
(1999) (physical helplessness requirement in New York
Penal Law ‘‘is not satisfied by an inability to move one’s
body [when] the victim is able to protest verbally’’);
People v. Morales, 139 Misc. 2d 200, 202, 528 N.Y.S.2d
286 (1988) (‘‘although [the victim, who was paralyzed
from the neck down] was indeed physically helpless in
the ordinary sense of the term, she was not physically
helpless for purposes of the [New York Penal Law]’’).

--- End quote ---

Rationalization.

The dissent also contends that the jury reasonably could have found that
the victim could not communicate unwillingness to an act on the basis of
the testimony of the physicians who stated that they could not communicate
with the victim during the course of her gynecological examinations. As we
previously explained, however; see footnote 17 of this opinion; the fact that
the physicians could not communicate with the victim does not establish
that the victim was unable to communicate with them by biting, kicking,
scratching, screeching, groaning or gesturing if she felt the need to do so.
Because the victim requires a communication board to express herself in
words, it proves nothing that, without the aid of her communication board,
the victim did not attempt to communicate with her physicians.

--- End quote ---

Anything is possible. I believe the standard though was "reasonable".



 

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