Judiciary Committee

JOINT FAVORABLE REPORT

Bill No.:

HB-6641

Title:

AN ACT CONCERNING THE SEXUAL ASSAULT OF PERSONS WHOSE ABILITY TO COMMUNICATE LACK OF CONSENT IS SUBSTANTIALLY IMPAIRED.

Vote Date:

4/12/2013

Vote Action:

Joint Favorable

PH Date:

3/25/2013

File No.:

SPONSORS OF BILL:

Judiciary Committee

REASONS FOR BILL:

To expand the definition of sexual assault with respect to individuals who are “physically helpless.” This bill is a response to the decision of the Connecticut Supreme Court in its decision in State v. Fourtin.

RESPONSE FROM ADMINISTRATION/AGENCY:

Division of Criminal Justice: Supports this bill. This legislation addresses concerns articulated in State of Connecticut v. Richard Fourtin. The bill is a product of extensive discussions involving the Division of Criminal Justice, advocacy groups for individuals with disabilities and representatives of the criminal defense bar. In State v. Fourtin, a jury convicted the defendant, the victim's mother's boyfriend, of attempted sexual assault for assaulting a woman who suffered from severe cerebral palsy, was developmentally disabled, and was only able to communicate by pointing at letters on a board. The Connecticut Supreme Court found the evidence that the victim was “physically helpless” insufficient because there was testimony that she could screech, kick, and bite if she did not want to do something. This bill addresses these concerns.

Chief State's Attorney Kevin Kane, in his Oral Testimony Before the Committee: Supports this bill. “Physically helpless,” as currently defined, means a person who is unconscious or physically unable to communicate unwillingness to act. This would not cover people with developmental disabilities, which is what this bill will address. Adding this language will make it easier to prosecute those who initiate sexual contact or sexual intercourse with someone who is has a developmental disability, which currently is not always covered in the statute.

Department of Developmental Services, Testimony Submitted by Commissioner Terrence Macy: Supports this bill. By changing the definition of “physically helpless,” the bill includes protections for both those who are unable to communicate unwillingness to sexual contact and those persons who cannot physically resist unwanted sexual contact. This change should enhance the court's ability to prosecute those predators who would take advantage of the most vulnerable citizens of Connecticut. While the department recognizes that adults with intellectual disability have the right to engage in consensual sexual relations, it is imperative that persons who have an impaired ability to consent to sexual contact or to defend themselves from unwanted sexual contact are protected.

Council on Developmental Disabilities, Testimony Submitted by Meg McDermott: The Council supports the bill for the following reasons. 1) The proposed language would strengthen Connecticut law so that offenders would be accountable when they sexually assault people with developmental disabilities, 2) The phrase “mentally defective” will be removed from state statutes and replaced with more appropriate language, 3) The proposed bill will clarify the term “physical helplessness” as defined in the Connecticut sexual assault statutes. The new definition clearly will state that a person is “physically helpless” when he or she is conscious but physically unable to resist or communicate unwillingness to a sexual act.

Office of Protection and Advocacy for Persons with Disabilities, Testimony Submitted by Executive Director James D. McGaughey: Supports the bill. This bill is about more than adopting politically correct language. People with disabilities have a major stake in the effectiveness of the protections afforded under our criminal law. Recent data from the Bureau of Justice Statistics shows that a person with a disability is twice as likely to be sexually assaulted as someone who does not have a disability. Since the Office has been involved in efforts to address the problems that surfaced in the State v. Fourtin case, a number of people who have been active in the disability rights movement have approached the Director expressing support for the bill. The bill also does not go too far in that it does not prevent people with significant disabilities from having consensual sexual relationships.

Permanent Commission on the Status of Women, Testimony Submitted by Natasha Pierre: Supports the bill. This bill has been before the committee in the past with strong support and no opposition. The problem was not fixed by the Supreme Court in State v. Fourtin, as the court found that if a woman was conscious, she was not “physically helpless.” Supports passage as it would close a gaping hole in Connecticut law.

NATURE AND SOURCES OF SUPPORT:

Women's Center of Greater Danbury, Inc., Melanie Danyliw: This legislation closes a loophole in Connecticut law and will help make sure that offenders who sexually assault someone with a physical or developmental disability can be held accountable. In that time, at least two sex offenders have gone free due to this loophole. The Supreme Court in State v. Fourtin narrowly defined “physically helpless” so that the vast majorities of people with disabilities are unprotected from sexual predators. This legislation would change this.

Connecticut Sexual Assault Crisis Services, Inc. (CONNSACS), Anna Doroghazi: According to current law, in order for an individual to be considered “mentally defective,” such person must have a mental condition that renders him or her incapable of appraising the nature of such person's conduct. This addresses only the most severe physical and mental disabilities and is insufficient to hold offenders accountable when they sexually assault individuals with severe but not completely incapacitating disabilities. Research estimates that 83% of women and 32% of men with developmental disabilities will experience some kind of sexual abuse during their lifetime.

The Sexual Assault Crisis Service of the YWCA New Britain, Erica Mello, Mary Delucia: Revisions to current state statute are essential to ensure offenders who assault residents with disabilities are held accountable. The bill would expand the definition of “physically helpless,” removing the obligation of disabled victims to physically resist an attack.

CONNSACS, Vicky Wasilewski: Among the population of adults with developmental disabilities, as many as 83% of female and 32% of males are victims of sexual assault in their lifetime. Also, 49% of people with developmental disabilities, who are victims of sexual violence, will experience 10 or more abusive incidents, while only 3% of these sexual abuse cases ever get reported. 38% experience sexual violence by their partner, 33% by friends or acquaintances, 33% by foster family members, and 25% by caregivers or service providers.

April Smolski, LMFT: Supports this bill as a licensed marital and family therapist as well as a trained and certified sexual assault victim advocate and counselor. Statistics show that more than 1 in 4 girls and 1 in 6 boys are sexually abused before the age of 18 years old. Connecticut statistics show that more than 90% of victims know their perpetrator.

Arc Connecticut, Leslie Simoes: This bill will strengthen prosecutions and increase the likelihood of a second degree sexual assault conviction for people who victimize persons with disabilities. The Arc Connecticut has worked in coalition with other organizations to make this legislation possible. To provide that sexual intercourse or sexual contact with a person, whose ability to resist or communicate consent is substantially impaired because of such person's mental or physical condition constitutes the offense of sexual assault Is not only the ethical and moral thing to do, is supported by many in the disability rights community.

Austin Longendyke: Supports the bill as a student at the University of Connecticut. The clarification of the term “physically helpless” would protect not only those who are unconscious, but also those who may be conscious but physically unable to resist assault or communicate a lack of consent.

Ingrid Pasten: Supports the bill a sexual assault crisis counselor. The bill can improve sexual assault crisis services by allowing persons with disabilities to be adequately protected from potential perpetrators, by removing language that is offensive to persons with mental disabilities, by creating a fair law in which perpetrator are more likely to be held accountable for their offenses, and by providing loved ones the ability to report on behalf of victims because there are more cases that the law would find criminal.

Rape Crisis Center of Milford, Cynthia Dugan: The bill has support not only from a rape crisis center but from law enforcement and ultimately the criminal justice system should the victims or loved ones make the difficult decision to report the crime.

Rebekah Diamond: Supports this bill as a student at the UConn School of Social Work and has worked with developmentally disabled adults for the past 5 years. Removing the wording “developmentally defective,” and replacing it with “impaired because of mental disability or disease” would be returning power to those who have been marginalized for so long.

Quinnipiac University School of Law Civil Justice Clinic, Lauren MacDonald: Supports this bill as a law student at Quinnipiac University School of Law. Current law states that if one can speak, then one is most likely not “physically helpless.” Furthermore, the current law indicates that if one cannot speak, but can move one's body – even just a little – then one is most likely not “physically helpless.” Finally, the law indicates that so long as one is awake and can move something, then one is probably not “physically helpless.” The current “physically helpless” definition fails to protect people with disabilities, but this bill will protect people with disabilities by lowering the standard for qualifying as “physically helpless.”

Planned Parenthood of Southern New England, Susan Lloyd Yolen: The changes the bill implements include removing the offensive term “mentally defective” and replacing it with more acceptable language. Language will also clarify the definition of “physical helplessness” to mean that a person is physically helpless when he or she is conscious but physically unable to resist or communicate unwillingness to submit to a sexual act.

Barbara Albert: Supports the bill. She has multiple medical challenges including mental illnesses. Ms. Albert recounts a personal history of abuse in hopes that the perpetrators of these acts “don't win anymore.”

Connecticut Chapter of National Organization for Women: A National Crime Victimization Survey found in 2007 that persons with a disability have an age-adjusted rate of rape or sxual assault that is more than twice the rate for persons without a disabilitiy. Considering that rape and sexual assault is already underreported for the non-disabled population, it is likely that this number is even higher for people with disabilities, as they would not or could not report their assault.

Connecticut Women's Education and Legal Fund (CWEALF), Amy Miller: This bill is essential in protecting the rights of people with physical and developmental disabilities. Advocates from all over the state have been working on this bill for four years and it can't wait another year. By requiring a person to physically resist his or her attacker, the law is requiring them to endanger themselves by fighting back in order to prove a sexual assault occurred. This bill would ensure that no person is taken advantage of sexually because of his or her disabilitiy and inability to communicate consent.

Connecticut Chapter of the National Organization for Women (NOW): Appreciates the term “mentally defective” as that connotes a type of inferiority that should not be associated with a person's other abilities. NOW is also pleased to see clarifying language on the definition of physically helpless. The definition includes the inability to “resist an act of sexual intercourse or sexual contact.”

NATURE AND SOURCES OF OPPOSITION:

Attorney Robert E. Byron: Atty. Byron represented Mr. Fourtin in the appeal which is the impetus for this bill. Evidence from the Department of Justice in its 2006 report “Criminal Victimization” indicates that the rate of sexual assaults nationwide has decreased 69%, and evidence from Connecticut Law Enforcement Agency Crime Reports found that from 2005-2008 Connecticut ranked 49th in the nation in the incidence of rapes. It is thus reasonable to infer that since assaults overall are going down, assaults against persons handicapped are going down as well. The wording of the bill would not exclude a wide swarth of people who might want to have sexual relations but find themselves impaired; for instance, victims of stroke. The bill as written would criminalize per se the spouse or paramour of a stroke victim, with no indication when in a victim's recovery that criminalization would end, and what basis, or how. The law as it exists does not disadvantage the state or a complaining witness as juries are inclined anyway to believe women who charge sexual assault. Finally, Atty. Byron notes that the present statute is derived from New York law and New York does not seem to have a problem with it.

Reported by: Ross Gionfriddo

Date: 4/12/13