Malloy to sign bill closing sexual assault loophole

Gov. Dannel P. Malloy is expected to sign a bill eliminating what victim advocates and prosecutors say is a loophole that makes it nearly impossible to prosecute certain sexual assault cases.

The bill expands the legal definition of “physically helpless” in the context of sexual assault. Prosecutors and advocates for victims and people with disabilities say the existing definition is too restrictive.

Proponents have been pushing for a change in the definition for four years. This year, the measure passed the House and Senate unanimously, and Malloy’s spokesman said the governor will sign it.

The bill was inspired by the case of Richard Fourtin, a Bridgeport man whose sexual assault conviction was overturned because of the state’s legal definition of “physically helpless.”

A jury convicted Fourtin of attempted second-degree sexual assault and fourth-degree sexual assault under a statute that covers sexual contact with a person who is physically helpless. The victim was a 25-year-old woman Fourtin helped care for, who had cerebral palsy and mental retardation and could not walk or talk. She disclosed the assault to a staff member at an adult day care program she attended, communicating by gesturing and pointing to letters on a board to spell out words. A medical exam found symptoms consistent with sexual assault.

But an appellate court overturned Fourtin’s conviction. The courts found that the woman did not meet the definition of “physically helpless” because she was not completely unable to express unwillingness — she could bite, kick, scream, or point to letters on a board to spell words. The Connecticut Supreme Court upheld that ruling last fall.

Currently, state law defines “physically helpless” as being unconscious or physically unable to communicate unwillingness. The bill would expand the definition to cover a person who is “physically unable to resist an act of sexual intercourse or sexual contact.” The language of the bill was based in part on a dissenting opinion in the Fourtin case, written by Justice Flemming L. Norcott.

In another case cited by proponents of the change, a woman was allegedly inappropriately touched by a paramedic in 1987 while she was being taken to a hospital and physically restrained. Prosecutors argued that the woman was physically helpless because she couldn’t move away from the paramedic. But the state Supreme Court ruled that she didn’t fit the definition of helpless because she had repeatedly told the defendant to stop.