Court: Rape victim wasn’t “physically helpless”

The Connecticut Supreme Court ruled 4-3 on September 28 that a nonverbal woman with cerebral palsy, who has limited intellectual functioning, did not meet the state’s definition of “physically helpless” to prove that she did not consent to sexual intercourse in a rape case.

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The decision mirrors an appellate level decision that overturned a jury verdict, which had found that the woman, identified as LK in court documents to protect her confidentiality, was raped by a man dating the woman’s mother, whom she was living with at the time.

“People with disabilities are much more likely to be sexually assaulted than people who do not have disabilities. Our justice system should provide them with protection, not require them to resist their attackers,” James McGaughey, executive director of the Connecticut Office of Protection & Advocacy for People with Disabilities, told  NBC.   At the trial level, LK testified through a communication board by clicking on letters, numbers and symbols, the only way she is capable of communicating.

In an amicus brief filed on behalf of LK, a trio of advocacy groups characterized the trial as a rare example where a court fully complied with the Americans with Disabilities Act by providing full accommodations to ensure each side is fully able to testify. The Appellate and Supreme Courts used her testimony against her, stating that the jury’s decision was unreasonable since LK’s minimal ability to testify at the trial showed she was capable of communicating, and thus could have told her attacker that she refused consent to have sexual intercourse.

The courts honed in on the testimony of LK’s mother, who said she is capable of communicating by kicking, biting and screaming. In the amicus brief, Connecticut Office of Protection & Advocacy for People with Disabilities, the Arc of Connecticut and the Developmental Disabilities Council of Connecticut called the situation the “ultimate catch-22.”  If LK hadn’t testified then the prosecution wouldn’t have had a case, but since she did testify, she lost the case.

“What the actions of the Appellate Court say to people with disabilities is that even when they report crimes and find police and prosecutors who are willing to investigate and prosecute these crimes, the courts will not recognize their claims of justice,” the amicus brief stated. “The courts will hold people with disabilities to a higher standard than other victims and look at their disabilities in general and not simply their actions at the time of the incident.”

The Supreme Court’s opinion cited a litany of cases for the proposition that “total physical incapacity does not, by itself, render an individual physically helpless.” In one of the cited cases, the victim was paralyzed from the neck down, but the court still ruled that she was capable of resisting her attacker.

Essentially, the court ruled that the “physically helpless” standard, which must be proved by a standard of “beyond a reasonable doubt,” is available only for victims who were sleeping or otherwise unconscious. Connecticut, like every other state of country, no longer requires rape victims to prove they physically resisted their attacker to prove they did not consent to sexual intercourse.

The move came amid increased recognition that rape law should focus on the actions of the attacker, not the victim, and that physical resisting often increases the risk of even greater harm to victims. According to statistics cited in the amicus brief, women with disabilities are twice as likely to be raped than their peers. An estimated 68 to 83 percent of women with disabilities will be sexually assaulted in their lifetime, a rate more than 50 percent higher than the general population.

The Connecticut Office of Protection and Advocacy for Persons with Disabilities is part of the federally funded protection and advocacy system and a member of the National Disability Rights Network.