[acb-hsp] Bite, Kick, or Scratch

[peter altschul]

Court Rules Severely Disabled Woman Wasn't Raped Because She 
Didn't 'Bite, Kick or Scratch' Her Assailant
  Zack Beauchamp October 3, 2012
  In a 4-3 ruling Tuesday afternoon, the Connecticut State 
Supreme Court overturned the sexual assault conviction of a man 
who had sex with a woman who "has severe cerebral palsy, has the 
intellectual functional equivalent of a 3-year-old and cannot 
verbally communicate." The Court held that, because Connecticut 
statutes define physical incapacity for the purpose of sexual 
assault as bunconscious or for any other reason. . .  physically 
unable to communicate unwillingness to an acteab the defendant 
could not be convicted if there was any chance that the victim 
could have communicated her lack of consent.  Since the victim in 
this case was capable of "biting, kicking, scratching, 
screeching, groaning or gesturing," the Court ruled that that 
victim could have communicated lack of consent despite her 
serious mental deficiencies:
  When we consider this evidence in the light most favorable to 
sustaining the verdict, and in a manner that is consistent with 
the state's theory of guilt at trial, we, like the Appellate 
Court, bare not persuaded that the state produced any credible 
evidence that the [victim] was either 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 Rape, Abuse, and Incest National Network 
(RAINN), 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 defectb as the 
victim did in this case."
  Anna Doroghazi, director of public policy and communication at 
Connecticut Sexual Assault Crisis Services, worried that the 
Court's interpretation of the law ignored these concerns: "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.  
Failing to bite an assailant is not the same thing as consenting 
to sexual activity." An amicus brief filed by the Connecticut 
advocates for disabled persons argued that this higher standard 
"discourag[ed] the prosecution of crimes against persons with 
disabilities" even though bpersons with a disability had an 
age-adjusted rate of rape or sexual assault that was more than 
twice the rate for persons without a disability."