The rights of a severely disabled person are at issue versus a Connecticut Supreme Court decision that is totally wrong headed and bends over backwards to accommodate a convicted rapist… This is the factual and moral dilemma faced by the guardians of victim, “L. K.” L.K. is a 26 year old woman who has cerebral palsy and developmental disabilities such that her intellect may be comparable to a three year old secondary to hydrocephalus (an abnormal buildup of cerebrospinal fluid (CSF) in the ventricles of the brain. The fluid is often under increased pressure and can compress and damage the brain). LK cannot effectively communicate, nor can she do any of her activities of daily living without total assistance – (i.e. bathing, dressing, eating, transfers, meal prep. toileting, etc.)
There are few situations in this life that this writer absolutely cannot tolerate. When you grow up with more than one medical issue…seemingly occupying 90% of your childhood and young adulthood years… with 55 surgeries…and then one day a homicide occurs in your family; you think in your heart of hearts, “I have seen it all.” But in reality, you know that someday, somewhere you will bear witness to the truly incredible…and the disgusting again. Ladyjustice has seen such situations more often than she would like to admit. One such life story is that of Susan Murphy-Milano in her astounding and truthful account, “Holding My Hand through Hell” http://www.holdingmyhandthroughhell.com/.
LJ must digress a bit from this case to make some generalities should you happen to have a disability and want to survive in this life relatively unscathed… Readers may have not had the benefit to review Ladyjustice’s former blogs on disability related topics…. You may not be aware that Ladyjustice has little tolerance for the “poor me, I’m disabled” attitude that a certain percentage which “our population” displays. Ladyjustice says… build up your armor and don’t venture into very narrow political correctness traps. (Although everyone has their preferred terminology we should pick our battles carefully, based on core issues). Be yourself, be intelligent, sell yourself on your abilities. Get a tough skin…but always carry a warm heart for others. Life is tough….But… it’s just not worth it to be miserable…as you only go around once in this life!
HOWEVER, the real focus of this blog is the plight of LK….who by her very existence, asks only to live life with the best quality of life possible given her circumstances. Such is a woman/child who needed to be nurtured, protected and cherished for who she was….prior to unconscionable behavior …behavior that was savage and criminal, compounded by the actions of State Supreme Court justices who bent over backwards in every way imaginable and beyond in their interpretation of the law … in favor of a rapist.
The perpetrator was 28 year old Richard Fourtin, Jr. who was found guilty in 2008 of sexually assaulting a woman with a disability…and sentenced to six years in prison. Fortin was the boyfriend of LK’s mother and LK’s “caretaker.”
This case was appealed to the State Supreme Court by a panel of four judges.
On October 4, 2010, the Court ruled 4 to 3 that “there isn’t enough evidence that the victim resisted his advances.” The language reads that “a person is guilty of sexual assault if they engage in intercourse or sexual contact with an individual who is “mentally defective or physically helpless.” Not only is such language insulting and disrespectful to the status of physically disabled persons today, but it presents a morass of controversy in its absolute interpretation.
Legally, “mentally defective” means that a person must “have a mental condition which renders them incapable of appraising the nature of their conduct”. Connecticut statutes also define “physically helpless” as being either unconscious or physically incapable of communicating lack of intent.
The crux of the matter is that “LK “did not “indicate lack of consent by other nonverbal means such as biting or kicking, screeching, scratching etc.” Reports from the Connecticut Post reveal that LK’s cerebral palsy was such that the only physical control she possessed was movement of her right index finger.
Connecticut’s Appellate Court ruled that because the victim did not engage in the above acts “and because she was not“unconscious or so uncommunicative” at the time, “no reasonable jury could have concluded that she was physically helpless” and not able to express lack of consent. What. What, What???
Anna Doraghazi, Director of Public Policy and Communication for the Connecticut Sexual Assault Crisis Services testified in March 2012 before the Connecticut Legislature’s Judiciary Committee.(She also was a former guest on “Shattered Lives); (http://www.blogtalkradio.com/insidelenz/2012/05/05/shattered-lives).
She testified that: physical helplessness as currently defined, is very problematic, as it require persons with severe disabilities to communicate their lack of consent using any means possible…even if it requires great difficulty… if it requires them to fight against a perpetrator who is likely stronger and more physically able. In addition, it is a myth that the absence of “no” means consent. It also does not take into account the likelihood and very valid fear that a vulnerable and physically compromised person feels, thus remaining silent and surviving the attack.
Ladyjustice believes that Richard Fourtin, Jr. had no business whatsoever being the caretaker for “LK,”as he was engaged in a relationship with a relative. A caretaker of a sick or disabled person have a trust that cannot and should not be violated. In this case, that trust was violated in the most heinous way. In addition, this writer believes that even if this client was not intellectually impaired, it is likely that a “normal three year old” would also be rendered helpless and not understand the actions and consequences of “the act.” To say that a person has to be “unconscious” in order to fit the definition of “physical helplessness” is ludicrous at best. It proves the point that legislators frequently do not consult with the disabled when crafting laws…the very experts who could do it better….
In a press release October 2, 2012, Ms. Doraghazi stated, “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,” said Doroghazi. “Failing to bite an assailant is not the same thing as consenting to sexual activity.”
***Ladyjustice consulted with Ms. Doroghazi the week of October 7, 2012 for her impressions and comments. She stated that she has received supportive calls from across the country regarding the need for change regarding current legislation.
She stressed that the media has failed to highlight these very important facts:
- Persons with disabilities have the highest incidence of sexual victimization of any other group in the United States;
- Up to 83% of women with developmental disabilities and 32 % of men suffer some type of physical abuse in their lifetime;
- Often people with intellectual disabilities are abused by loved ones or caretakers)- 32% by family members or acquaintances;
- 44% are abused by caretakers, residential staff, transportation drivers or PCAs.
- Our laws must offer reasonable protection for all persons with disabilities.
“… Our justice system should provide them with protection, not require them to resist their attackers.” James McGaughey, Executive Director of the State of Connecticut Office of Protection and Advocacy.”
Change for the Future….
State Representative Gerald Fox III, and House Chair of the Judiciary Committee stated, “The Fourtin decision has made it imperative that we make sure person with disabilities are protected against sexual assault. I will again push for legislation to clarify this state law.”
Truth be told, Ana Doraghazi has trekked up to the Legislative Office Building in Hartford for three years expressing their concerns regarding this law and the unfairness to persons with disabilities. Isn’t now the time? If not now… when? Let’s save the future “LKs” of the world from the clutches of the monsters like Richard Fourtin, Jr. NOW! Will this case be fodder for sleazy defense attorney defending others like Fourtin? Undoubtedly….
But… there is hope for the future….. Please, every reader regardless of your geographic location, Ladyjustice asks you to call Representative Gerald Fox’s office to register your support for changing this law when the new Connecticut legislative session begins in January 2013. Link: http://www.housedems.ct.gov/Fox/index.asp
Anna Doroghazi – anna@connsacs.org
Director of Public Policy and Communication
FYI… Ana Doraghazi will appear again on “Shattered Lives” to give us an update regarding this precedent setting case at the end of January.
Parting Words from Ladyjustice…
Definition: Proactive: Taking action and making changes before they need to be made, rather than waiting until problems develop;
Definition: Reactive: Reacting to things that happen, rather than making things happen yourself
References Used:
CONNSACS Press Release October 2, 2012 PDF;
http://cga.ct.gov/2012/JUDdata/Tmy/2012SB-00247-R000312-Anna%20Doroghazi-%20CONN%20SACS%20-TMY.PDF
http://www.ctpost.com/news/article/Supreme-Court-sets-accused-rapist-free-3910077.php
http://www.macmillandictionary.com/dictionary/american/reactive
Donna R. Gore 