Steven Yang Fitzgerald said he thought a woman had been flirting with him, so he went into the room where she slept, believing she had invited him there.

The woman said she woke up and found someone had crawled into bed behind her. She thought it was Fitzgerald’s roommate – the man she had just begun seeing – and said she wanted to have sex. Moments later, she realized the man touching her was Fitzgerald.

She immediately reported what happened to police.

Police interrogated Fitzgerald, who offered an unexpected defense: He said he has Asperger’s syndrome, a high-functioning type of autism that in the past has led him to misconstrue other people’s social cues.

Fitzgerald was charged with a list of sex crimes, the most serious was first-degree unlawful sexual penetration. It carries a mandatory 8 1/3-year prison sentence under Oregon’s Measure 11 sentencing law.

In the following months, two questions hung over the case: Did Fitzgerald, 29, know what he’d done? And how -- if at all -- should the criminal justice system punish a defendant who claims to have a history of misinterpreting other people’s wishes and intentions?

Experts who have studied Asperger’s syndrome say people affected by it can struggle from their early years to accurately interpret nonverbal forms of communication, such as the body language or facial expressions of others.

The prosecutor repeatedly asked Fitzgerald’s defense attorney for a psychological evaluation, which could include a formal diagnosis of Asperger’s syndrome. But as the months wore on, Fitzgerald’s side handed over nothing, and the validity of his autism defense remained in question.

Complicating the case was the woman’s encouragement when she awoke and mistook Fitzgerald for his roommate.

***

Fitzgerald shared a four-bedroom North Portland home with several other people.

On the afternoon of July 10, he was sitting on his front porch when police pulled up. He wondered if they were in the neighborhood to crack down on some noisy neighbors, he said.

But officers told Fitzgerald they were there to investigate him.

The woman he’d just been in bed with had summoned them and accused him of assaulting her while she lay sleeping, they said.

Fitzgerald said he was stunned. The woman had spent the previous night with one of his roommates. That next morning and afternoon, she had flirted with Fitzgerald, he told police. After the roommate left for work, Fitzgerald told police he responded to the woman’s signals by following her into the roommate’s bedroom where she napped.

He also told them that his Asperger’s had in the past made it difficult for him to read other people, but he’s worked hard in recent years to do a better job.

He said he had no doubt the woman wanted him in bed. She had cooked him eggs and bacon, had touched him on the shoulder and had gazed into his eyes, he told detectives.

“That chemistry was there, the vibe was right and everything was crystal clear, as far as I was concerned,” Fitzgerald said during a 90-minute recorded police interrogation.

***

The woman told police she had been drinking that day, had decided to take a nap and awoke to a naked man lying in bed behind her, touching intimate parts of her body.

Because she couldn’t see the man’s face, she thought the man was Fitzgerald’s roommate, whom she had slept with hours earlier. She recounted to detectives how she told the man now in bed with her that she wanted to have sex with him.

It was only at some point later, the woman said, she saw a tattoo on the man’s arm and instantly realized he wasn’t her new boyfriend.

About the same time, one of Fitzgerald’s other roommates opened the door to the bedroom to retrieve something from the room and interrupted Fitzgerald.

The roommate spoke to the distraught woman and one of them called police.

None of several other people in the house that morning or afternoon said they observed the woman give any indication that she wanted to have sex with Fitzgerald before she went into the bedroom to take a nap, according to investigators. All of them said Fitzgerald’s account was simply inaccurate, police said.

***

Fitzgerald told detectives that he was from Southern California, attended three years of college and had moved to Portland. He said he worked in a popular downtown Portland brunch spot and at a prominent Portland brewery before calling it quits a few weeks before he met his roommate’s new girlfriend.

He was raised Catholic, he told police, and for a long time had wanted to wait until after he was married to have sex, but in recent months was unsure if that would ever happen. He said he’d changed his mind, and his first attempt at sex was with his roommate’s girlfriend.

The unusual case was scheduled to go to trial next week in Multnomah County Circuit Court.

But last week, days before trial, Fitzgerald agreed to plead no contest to felony coercion for compelling the woman into having unwanted contact with him. He was sentenced to 60 days in jail, three years of probation and a list of conditions, including a mental health evaluation, sex offender treatment, a letter of apology to his victim and a $2,000 payment to her as well.

He also pleaded no contest to second-degree sexual abuse -- a charge that will be dismissed if he follows all court orders over the next 1 ½ years. If he fails to follow the orders, he could face prison time to be determined by a judge.

He made no statements during the hearing.

Fitzgerald’s defense attorney, Michael Levine, said he had advised his client not to go to trial because he faced a state court system that allows only 10 of 12 jurors to agree on a guilty verdict and, if he lost, a long time in prison under Measure 11.

“This, in my view, is a tragedy,” Levine said. “... Maybe another attorney would have said, ‘No, no. Go to trial. It’s a guaranteed winner.’ I went back and forth on that. But I couldn’t in good conscience advise a trial.”

***

Prosecutor Melissa Marrero saw the case much differently.

Leading up to the plea hearing, Fitzgerald and his attorney offered no proof that Fitzgerald had Asperger’s syndrome, such as an evaluation. That undermined one key aspect of his defense.

“We would not have proceeded with the charges if we didn’t believe they were appropriate and backed up by the evidence,” Marrero said.

But she told The Oregonian/OregonLive that even though she received no reports documenting Asperger’s, she’s still open to seeing them, even at this point in the case. “We would welcome it – if they exist,” Marrero said.

Then inexplicably, nearly a week after the plea, Levine did send Marrero an evaluation of his client.It’s unclear what the report says. It’s also unclear if the report will have any impact on Fitzgerald’s case.

Levine declined comment. Marrero said she can’t comment because the report is confidential.

Aside from the autism defense, Marrero said, even if the woman had consented to Fitzgerald touching her when she thought he was someone else, she couldn’t have done so initially when he let himself into the room and began sexually assaulting her while she was asleep.

Under the law, she was “physically helpless,” Marrero said.

“You can’t walk into a room where someone is sleeping and (sexually touch them) and hope that when they wake up, they will consent,” Marrero said.

She agreed to the plea deal, she said, because of the unique circumstances of the case, including the mistaken identity and the woman’s response before she realized Fitzgerald was the one touching her.

The sentence ensures Fitzgerald will get the sex offender treatment he needs, Marrero said. He also will have to follow a strict set of rules for the next three years, she said.

The agreement was reached after consulting the victim, she said. The woman didn’t attend the sentencing hearing.

-- Aimee Green

agreen@oregonian.com

o_aimee

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