Sup Ct sets accused rapist of disabled victim free {merged}

[Lillybee]

http://thinkprogress.org/justice/2012/1 ... cratching/

It looks like "legitimate rape" is gaining ground. This is outrageous. There is no way that a handicapped person with the mental age of 3 can give consent.

[Alecto]

That is insane. Absolutely insane.

[meda]

Actually, the prosecutors in this case may have made a mistake. If you look at the sections of the statutes the guy was convicted under, they deal with physical, rather than mental capacity. For example: 53a-65 states:

(4) "Mentally defective" means that a person suffers from a mental disease or defect which renders such person incapable of appraising the nature of such person's conduct.

(5) "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling such person's conduct owing to the influence of a drug or intoxicating substance administered to such person without such person's consent, or owing to any other act committed upon such person without such person's consent.

(6) "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

He was convected under sub section 6, not 4 or 5. Had the prosecutors argued that she lacked the capacity to consent because she was mentally defective or mentally incapacitated, the outcome may have been different. The decision states that the prosecution did not prove that the victim was "physically helpless", since she still had the ability to physically resist. I dont understand why he was not charged under the other sub sections of the statute that deals with the mental capacity of the victim. It seems like a much easier standard to meet.

I think this is a shit decision for the victim and the family, but I'm not convinced it's bad law.

[MandyLaLa]

Actually, the prosecutors in this case may have made a mistake. If you look at the sections of the statutes the guy was convicted under, they deal with physical, rather than mental capacity. For example: 53a-65 states:

(4) "Mentally defective" means that a person suffers from a mental disease or defect which renders such person incapable of appraising the nature of such person's conduct.

(5) "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling such person's conduct owing to the influence of a drug or intoxicating substance administered to such person without such person's consent, or owing to any other act committed upon such person without such person's consent.

(6) "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

He was convected under sub section 6, not 4 or 5. Had the prosecutors argued that she lacked the capacity to consent because she was mentally defective or mentally incapacitated, the outcome may have been different. The decision states that the prosecution did not prove that the victim was "physically helpless", since she still had the ability to physically resist. I dont understand why he was not charged under the other sub sections of the statute that deals with the mental capacity of the victim. It seems like a much easier standard to meet.

I think this is a shit decision for the victim and the family, but I'm not convinced it's bad law.

Would it still be double jeopardy if they re-tried him under 4 or 5?

[Buzzard]

Actually, the prosecutors in this case may have made a mistake. If you look at the sections of the statutes the guy was convicted under, they deal with physical, rather than mental capacity. For example: 53a-65 states:

(4) "Mentally defective" means that a person suffers from a mental disease or defect which renders such person incapable of appraising the nature of such person's conduct.

(5) "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling such person's conduct owing to the influence of a drug or intoxicating substance administered to such person without such person's consent, or owing to any other act committed upon such person without such person's consent.

(6) "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

He was convected under sub section 6, not 4 or 5. Had the prosecutors argued that she lacked the capacity to consent because she was mentally defective or mentally incapacitated, the outcome may have been different. The decision states that the prosecution did not prove that the victim was "physically helpless", since she still had the ability to physically resist. I dont understand why he was not charged under the other sub sections of the statute that deals with the mental capacity of the victim. It seems like a much easier standard to meet.

I think this is a shit decision for the victim and the family, but I'm not convinced it's bad law.

I agree completely. If you read the opinion

http://www.jud.ct.gov/external/supapp/C ... 07CR83.pdf

You see that they alleged the correct provision, but didn't try the case in the best way. This is a prosecutor issue, not a law issue. On page 13 and 14 of the decision the court goes through how they could have sustained the conviction, had they pursued evidence in support of the standard.

This case, unfortunately, is over. It cannot be retried on the same set of circumstances. We can only hope he doesn't hurt someone else in the future.

[Three and Done]

It may be that the "law" was correct, but this make me so sick I don't know if I want to cry or vomit... Maybe both.

[2xx1xy1JD]

I agree completely. If you read the opinion

http://www.jud.ct.gov/external/supapp/C ... 07CR83.pdf

You see that they alleged the correct provision, but didn't try the case in the best way. This is a prosecutor issue, not a law issue. On page 13 and 14 of the decision the court goes through how they could have sustained the conviction, had they pursued evidence in support of the standard.

This case, unfortunately, is over. It cannot be retried on the same set of circumstances. We can only hope he doesn't hurt someone else in the future.

The prosecutors may have been incompetent.

Other issues, however, remain with the law and/or this judgment.

1. My ideal would be a law that doesn't just require proof that the victim objected/resisted, but rather some sort of proof that the victim consented via words or actions. In other words - sexual contact would be illegal UNLESS there was proper consent given.

2. There's still a gap in the law when dealing with victims who are somewhat intelligent but unable to speak. This could be due to injury, stroke, some forms of cerebral palsy, etc. Inability to speak doesn't always mean that someone is "mentally defective" and incapable of consent.

3. In terms of the judgment, no one seems to have really taken a step back and looked at the entire situation to ask WHY the victim would not have reacted by scratching, kicking, etc. What's missing is a look at the whole context, the fear and shock that she may have felt at that moment, and the sense of total helplessness that she may have felt if she was alone with his man and saw that he was intent on violating her and knew that she was dependent on others for her basic needs. It's one thing to lash out at someone if you know that they will back off. It's another to do so if you sense that they won't back off and won't be restrained by any rules of common decency.

[shesinsane]

Todd Akin is just kicking himself for living in Missouri instead of Connecticut.

[meda]

The prosecutors may have been incompetent.

Other issues, however, remain with the law and/or this judgment.

1. My ideal would be a law that doesn't just require proof that the victim objected/resisted, but rather some sort of proof that the victim consented via words or actions. In other words - sexual contact would be illegal UNLESS there was proper consent given.

2. There's still a gap in the law when dealing with victims who are somewhat intelligent but unable to speak. This could be due to injury, stroke, some forms of cerebral palsy, etc. Inability to speak doesn't always mean that someone is "mentally defective" and incapable of consent.

3. In terms of the judgment, no one seems to have really taken a step back and looked at the entire situation to ask WHY the victim would not have reacted by scratching, kicking, etc. What's missing is a look at the whole context, the fear and shock that she may have felt at that moment, and the sense of total helplessness that she may have felt if she was alone with his man and saw that he was intent on violating her and knew that she was dependent on others for her basic needs. It's one thing to lash out at someone if you know that they will back off. It's another to do so if you sense that they won't back off and won't be restrained by any rules of common decency.

A couple of problems with this. First off, the bolded violates our constitution and the requirements of due process. You would change the entire burden of proof to the defendant to prove that he or she is not guilty of a crime? Currently that burden lies with the prosecution.

The US has a pretty nasty history of ignoring due process, up to and including state sanctioned lynchings and vigilante justice. I for one dont want to revisit the days of "strange fruit".

Also, just to go off on a mini rant....I hate the way stories like this get reported, because it always ends up with people saying that the judges are wrong, or the law needs to be changed....and that is often not true.

The job of the appellate judges in this case was to review the case to see if the burden of proof had been met to uphold the conviction. It had not. The judges spend a not inconsiderable amount of time reviewing how the prosecution could have met the standard needed for conviction. The judges didn't move the goal posts or change a standard here, they correctly ruled that the prosecution had not made its case. That is actually how the process is supposed to work. The fact that there is a very sympathetic victim here does not change the fact that the prosecution did not do its job.

If anything, this points to the need for better trial training for prosecutors who deal with sexual assault crimes, and better funding of our legal system in general, since it has been my observation that prosecutors, police, and public defenders have ridiculous workloads, which leads to many people falling through the cracks, both victims and defendants.

[doggie]

Damn they pulled a OJ. Poor woman Hopefully he gets busted before repeating his actions.

[Chowder Head]

They could do a civil suit.

[Lillybee]

According to this article, the victim was only able to move her right index finger.

http://www.huffingtonpost.com/2012/10/0 ... _ref=crime

[luckystone]

That's horrific. Looks like a prosecution error but either way, I'm gobsmacked. I thought if you didn't have the mental capacity to consent then that was it. Are they seriously saying someone who probably didn't even know what sex was, was miraculously consenting because they didn't fight back? I don't even know what to say

[Mela99]

One thing that bothers me here. They are assuming victims have the ability to resist.

I volunteered at a women's shelter and victim advocacy center in college. One woman I spoke to was raped by a family member. She was a strong girl - yoga and kick boxing, very athletic. But when that man got on top of her, she said it was like her muscles were filled with ice and lead; she could not move. Not a inch. It's a perfectly normal reaction to fear.

Ugh.

[luckystone]

That is actually a REALLY good point. I bet that's really common.

Also, even if you are pretty strong and fight, it might be pretty damn obvious it is not enough compared to a man, so you might give up and lie limp.

I don't even know how they prove if somebody fought or not. Maybe you'll have wounds. But it's probably just down to testimony, like with anythign else. So the man could easily lie it away, or the woman could be accused of lying.

[plaidninja]

Got this lovely gem from change.org in my inbox this morning.

http://www.ctpost.com/news/article/Supr ... z28rVNw5Pa

Basically the victim has CP, is nonverbal and capable of minimal motion. Rape charges were dismissed because she didn't scream or resist. Defense's argument: "Well, she could have moaned or kicked her feet or something."

Great. So, let's assume consent is implicit, and you have to declare your withdrawing consent in writing, signed by a notary, at least 24 hours in advance. THEN it's rape, right?

[Buzzard]

Already a thread on this - from 3 weeks ago...

viewtopic.php?f=10&t=13143

[plaidninja]

My mistake. I did check, but not far enough apparently. Thought the email represented an update.

[MarthaMarcyMayMarlen]

I read this shit. It makes me so angry! I could'nt read the other thread about this but I am beyond livid right now!

[Lillybee]

I wonder how long it will be before this rapist rapes again.

[MarthaMarcyMayMarlen]

Hopefully the police are monitering him.

[NotALoserLikeYou]

Already a thread on this - from 3 weeks ago...

http://freejinger.org/viewtopic.php?f=10&t=13143

Hi, sorry I am new, but when I click it says I am not authorised to read that forum, is there a chat forum that I cant see because I dont have enough posts? TIA

[crazyforkate]

What planet do these people live on?! Disgusting! I hope that woman can find some peace, somehow...

[SpeakNow]

This makes me so sad. I teach special education and have had several students with severe CP who were non-verbal. There is NO WAY they could consent. If someone ever raped one of my kiddos you better believe I would want him locked up for life.

[StarrieEyedKat]

Hi, sorry I am new, but when I click it says I am not authorised to read that forum, is there a chat forum that I cant see because I dont have enough posts? TIA

No worries, I merged the threads and put them in Snark. Also, you should be grandfathered in to being able to see Chatter, so I'll fix that.