Richard Fourtin was released from jail after the Connecticut State Supreme Court retracted his sentencing for raping a handicapped woman. The state Supreme Court decided that the woman – who has severe cerebral palsy, cannot move or speak, and has the mental capacities of a 3 year old – could have struggled harder to let Fourtin know that she didn’t want to have sex with him.

The woman, called only LK in legal documents, is so handicapped that she can only communicate by tapping with her right index finger. Yet she still was not what the Supreme Court calls “physically helpless.” When the victim testified in court against Fourtin – who was dating her mother at the time of the attack – it took four days to get her whole testimony. She communicated to the court by pointing to a piece of paper that read “Yes” and “No.” She had to use her left hand to push her right index finger to the word of her choosing. But according to the Supreme Court, the victim was not “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.” According to The Daily Mail, the court ruled that she could have tried to stop the alleged attack by “using various nonverbal methods, including screeching, biting, kicking and scratching.” They therefore determined that “no reasonable jury could have concluded that she was physically helpless as defined (by law).”

Fourtin was set free after his appeal was approved “because the judges felt that even though she is extremely handicapped, she could have tried to make him stop sexually assaulting her by kicking or biting him,” reports The Daily Mail. The verdict has outraged many victim’s rights groups, who fear that this ruling poses a threat to disabled individuals who are sexually assaulted, since it holds disabled persons to a higher standard: They must have proof that they did all they could to fight off an attacker.

But this is not the standard that the rest of the population is held to. “By implying that the victim in this case should have bitten or kicked her assailant, this ruling effectively holds people with disabilities to a higher standard than the rest of the population when it comes to proving lack of consent in sexual assault cases,” Anna Doroghazi, director of public policy and communication at Connecticut Sexual Assault Crisis Services said in a statement. “Failing to bite an assailant is not the same thing as consenting to sexual activity.”

The Rape, Abuse, and Incest National Network (RAINN), states that “lack of physical resistance is not evidence of consent, as ‘many victims make the good judgment that physical resistance would cause the attacker to become more violent.’ ” RAINN also notes that lack of consent is implicit “if you were under the statutory age of consent, or if you had a mental defect.” The victim in this case, who was 26 years old at the time of the attack, has disabilities which qualify her for this standard.

James McGaughey, executive director of the Office of Protection and Advocacy for Persons with Disabilities, said the state should be protecting people with disabilities. “People with disabilities are much more likely to be sexually assaulted than people who do not have disabilities, McGaughey stated, “Our justice system should provide them with protection, not require them to resist their attackers.”

What do you think? Could this victim have done more to resist her attacker… and should she have to prove it?

