The Massachusetts Supreme Court has thrown out the sexual assault conviction of a man found guilty of attacking a severely handicapped woman because there was no evidence that the woman communicated her refusal.
The man, Richard Fourtin Jr., was accused of sexual assault in 2005, and was found guilty in 2008 of attempted second-degree and fourth-degree sexual assault. He was sentenced to six years in prison.
But now Fourtin will go free because, in a 4-3 decision, the Court ruled that there was no evidence that the alleged victim communicated to her attacker that she did not want to have sex:
"(W)e, like the Appellate Court, 'are not persuaded that the state produced any credible evidence that the [victim] 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.'"
The alleged victim has severe cerebral palsy and, according to court documents, is not able to verbally communicate. During her initial court appearance, the woman testified by pointing at a board printed with the words "yes" and "no."
But defense lawyers argued that the woman could have communicated nonverbally by kicking, biting or groaning.
"We are incredibly disappointed with the State Supreme Court's decision in the Fourtin case," Anna Doroghazi, director of public policy and communication at the Connecticut Sexual Assault Crisis Services, said in a statement. "The court's interpretation of what it means to be 'physically helpless' jeopardizes the safety of people with disabilities."
According to RAINN (Rape, Abuse, and Incest National Network), states individually define who has the mental and legal capacity to consent. RAINN also adds, "Just because you didn't resist physically doesn't mean it wasn't rape," and lack of consent "can be implied from the circumstances"—such as a mental defect.
By overturning this conviction, it sends a message that those with disabilities must work extra hard to fight back in cases where simply saying "no" is not an option. Fourtin's freedom is a sign that more people buy into the "legitimate rape" theory than we'd like to hope, and it's a shame that he will be a free man while the woman continues to live in her own prison of silence.