Bill would close loophole in prosecuting sexual assault, supporters say

A jury convicted Richard Fourtin of sexual assault against a physically helpless person for allegedly having sexual contact with a woman who had cerebral palsy and mental retardation and couldn't walk or talk.

But the Connecticut Supreme Court ruled last fall that the conviction was invalid because the woman wasn't completely unable to express unwillingness: She could communicate by biting, kicking, screaming or pointing to letters on a board to spell words.

Advocates for sexual assault victims and people with disabilities were outraged. But Chief State's Attorney Kevin Kane said the decision wasn't unjust.

The problem, he said, is the way state law is written, narrowly defining "physically helpless" as being unconscious or physically unable to communicate unwillingness. It makes some cases impossible to prosecute, he said.

"We've had these cases that we often could not get to the jury or would decide not to charge, where we felt we should," Kane told members of the legislature's Judiciary Committee Monday.

The committee is considering a bill that would expand the definition of "physically helpless" to include someone physically unable to resist an act of sexual intercourse or contact. That means prosecutors would be able to bring sexual assault charges if the victim has a disability and can't physically resist, but could make sounds by grunting or groaning.

It would apply to the situation in the Fourtin case, Kane said, and to the circumstances of a 1987 case in which a woman was allegedly inappropriately touched by a paramedic while she was being taken to a hospital and physically restrained. Although prosecutors argued that the woman was physically helpless because she couldn't move away from the paramedic, the state Supreme Court ruled that she did not meet the definition of helplessness because she had repeatedly told the defendant to stop.

State Rep. Gerald Fox III

State Rep. Gerald Fox III, D, Stamford, believes there is momentum for the bill this year.

This isn't the first time advocates have tried to get the wording of the statute changed to make it easier to prosecute sexual assaults against people with disabilities. Bills that would do so failed to win legislative approval during the past three legislative sessions.

Rep. Gerald Fox III, a Stamford Democrat and co-chairman of the Judiciary Committee, said he believes there's momentum behind the bill this year. The Fourtin case helped, he said, in giving legislators a clearer sense of what the new language should include.

Part of the challenge in crafting a bill has been ensuring that it would not inadvertently criminalize consensual sexual activity by people with disabilities. People with disabilities worried that would have happened under one bill proposed this year that would have changed the definition of "physically helpless" to include someone who is unable to talk or is severely intellectually or physically disabled.

James McGaughey, executive director of the state Office of Protection and Advocacy for Persons with Disabilities, said the bill being considered by the Judiciary Committee strikes a reasonable balance.

He and other advocates say it's a critical change because people with disabilities are significantly more likely to be raped or sexually assaulted than people without a disability.

McGaughey said the pervasiveness of the problem has been made clear to him as he's pushed for similar bills in previous years.

"Individuals that I have known for a long time who've been very active in the disability rights movement have approached me confidentially and said, 'This is very important. I was sexually assaulted at one time,'" he said. "These crimes are difficult to report. They are difficult to investigate, and they are difficult to prosecute."

Supporters of the bill describe it as closing a loophole.

In the ruling on the Fourtin case, Supreme Court Justice Richard Palmer noted that "no one would dispute that the victim is physically helpless in the ordinary sense of that term."

But, he wrote, "physical helplessness" under state law has a different meaning, requiring that a person be unconscious or physically unable to communicate unwillingness.

"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," he wrote.

Fourtin, of Bridgeport, was initially convicted of attempted second-degree sexual assault and fourth-degree sexual assault under the statute prohibiting sexual contact with a person who is physically helpless. He was sentenced to 11 years in prison, to be suspended after serving six, in 2008.

The victim was a 25-year-old woman who Fourtin had helped to care for. She had disclosed the alleged assault to a staff member at an adult day-care program using gestures and a communication board, which has letters on it that a person can point to to spell words. A medical exam found symptoms consistent with sexual assault.

Fourtin did not contest the evidence that he had sexual contact with the woman, but argued that prosecutors had not proven that she met the definition of physical helplessness. His conviction was overturned on appeal in 2009. The Supreme Court upheld that ruling in October in a 4 to 3 ruling.

Follow Mirror health reporter Arielle Levin Becker on Twitter @ariellelb.