She did, however, permit the prosecution to display D.J. to the jury for a few moments in his mute and spastic condition. It is well established in the psychological literature that people tend to infer cognitive disability from severe physical disability, especially when the disabled individual is unable to speak. There is no reason to suppose that the members of the jury were immune to this tendency. Yet fewer than 50 percent of those with cerebral palsy have any degree of cognitive impairment. In an amicus brief, intended to be heard in conjunction with Stubblefield’s appeal, the American Civil Liberties Union, joined by various disability rights organizations, said that in exhibiting D.J. to the jury in this manner, the court had failed to protect his rights. The appellate court, however, has refused to consider the A.C.L.U.’s brief.

Judge Teare’s exclusion of Jones’s and Crossley’s testimonies means that the jury’s verdict was given in ignorance of vital evidence. It also suggests the possibility that D.J. himself is now in a situation akin to “locked-in syndrome,” finding himself suddenly deprived of any means of communication after two years of being able to express his thoughts through Stubblefield and Jones. To determine whether this is true, his ability to communicate via facilitated communication should be established by independent testing. This should be done for his sake and for Stubblefield’s.

Suppose, however, that all these doubts about Stubblefield’s conviction are mistaken. Even on that assumption, a sentence of 12 years in prison is excessive both in itself and in comparison with other recent punishments. It is, for example, in striking contrast to the penalty given to Brock Turner, the former Stanford student who is now free after serving only three months of a six-month sentence for raping an unconscious woman. The contrast does not indicate whether Turner’s sentence was too lenient, or Stubblefield’s too harsh. It does, however, suggest that we should think carefully about what considerations are relevant to sentencing for sex crimes. In determining how severe a sentence is appropriate for a sex crime, it seems obvious that the beliefs and intentions of the perpetrator and the harm done to the victim are among the most important considerations.

Judge Teare described Stubblefield as “the perfect example of a predator preying on her prey” and gave her a sentence that would be fitting for a predatory rapist. Yet no one would or could ever have known that Stubblefield and D.J. had had sexual relations if she had not conveyed to his mother and brother what she believed to be his message to them, via facilitated communication that she conducted in their presence, that he and she were in love and had consummated their relationship. This is the action not of a sexual predator but of an honest and honorable woman in love. Even if she is mistaken in her beliefs about his intelligence and ability to communicate, it is undeniable that these beliefs are sincere and that she was neither reckless nor negligent in forming them. This ought to have been a mitigating, if not wholly exculpating, consideration in the sentencing.

The severity of the judge’s sentence might be justifiable if Stubblefield’s having sex with D.J. not only was culpable but also both wronged him and harmed him. Yet both of the latter assumptions are questionable.

A central issue in the trial was whether D.J. is profoundly cognitively impaired, as the prosecution contended and the court seemed to accept, or is competent cognitively but unable to communicate his thoughts without highly skilled assistance, as the defense contended. If we assume that he is profoundly cognitively impaired, we should concede that he cannot understand the normal significance of sexual relations between persons or the meaning and significance of sexual violation. These are, after all, difficult to articulate even for persons of normal cognitive capacity. In that case, he is incapable of giving or withholding informed consent to sexual relations; indeed, he may lack the concept of consent altogether.