When the Law Doesn’t Fit the Crime: Lessons from the Blogosphere

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Practicing criminal law is not rocket science. It’s also not open-heart surgery. But it’s more than just slapping a slice of cheese between two pieces of bread and calling it a sandwich.

Although there are occasional dramatic wins and devastating losses, it is often dull and technical. This is part of the reason why earning a law degree requires years of study and why a comprehensive examination must be passed before you can receive a law license.

Criminal practice – whether defense or prosecution – is guided by statutes passed by legislatures and court decisions written by judges. Equally important are the facts of each individual case – not just what investigation reveals but whether the evidence is admissible, as only reliable facts can be brought into evidence and considered by a jury.  No two fact-patterns are exactly the same, and the presence or absence of a single fact can mean the difference between a conviction and an acquittal.

A large part of the power wielded by prosecutors comes from their initial charging decisions – determining under which statute the defendant should be prosecuted.  Each part – or element – of each statute must be proven by the state beyond a reasonable doubt. If the prosecutor chooses a statute that doesn’t fit the evidence or if the admissible facts don’t fulfill all the elements required by the statute, the prosecution will fail.  Similarly, if the prosecutor doesn’t advance a theory at trial that is consistent with the requirements of the chosen statute, the prosecution will fail.

This is what is meant by the state carrying the burden of proof.  It is one of the cornerstones of the criminal justice system.

These are just some of the thoughts I’ve had while following the latest uproar over an appellate court opinion in a criminal matter.  This time it’s a Connecticut Supreme Court decision reversing the conviction of Richard Fourtin for the offenses of attempted sexual assault in the second degree and sexual assault in the fourth degree, both of which require the prosecution to prove that the victim was “physically unable to communicate” her lack of consent to sexual intercourse.

Most of the facts are not in dispute. The victim is a woman with significant disabilities, including cerebral palsy, mental retardation, and hydrocephalus.  Fourtin, the defendant, was her mother’s boyfriend. He lived nearby, helped care for the victim, and the victim liked him. Although she is nonverbal, the victim is capable of communicating with others by “gesturing and vocalizing.” She expresses her displeasure by kicking, biting, and scratching, and she can convey her feelings by groaning or screeching.

Fourtin was found guilty at trial, but because the state failed to produce any credible evidence that the victim was physically unable to convey the concept of ‘no’ at the time of the alleged assault, the Connecticut appellate courts reversed the conviction. As a result, Fourtin – who had served four years of a six-year sentence – was released and cannot be retried because of principles of double jeopardy.

Given the combination of such high-voltage facts as a severely disabled woman, allegations of sexual assault, and whether lack of consent was sufficiently expressed, it is not surprising that tempers have run high in the media’s coverage of the decision.

Initial reports wrongly stated that a rape conviction had been reversed because a disabled woman didn’t fight back. An op-ed deemed the decision a travesty of justice because a state’s highest court had blamed the victim. The story quickly morphed into a broader one about the return of “rape culture” where “good girls don’t get raped” and women are assumed to consent to sex unless they can prove otherwise.

Law bloggers, enraged by the mischaracterizations and inaccuracies, linked to the relevant texts — the court’s opinion, the statutes, and the earlier cases upon which the decision was based. They argued that the law isn’t about feeling but about thinking. One went a step further, asserting that some people “feel more strongly about rape than they feel about rights.”  The narrative was now about the defense bar “scolding progressives” for their reaction to the decision. A moderator for a liberal site responded to attempts to correct the record by telling a commenter to  “shut the f*** up instead of being a rape apologist,” a message that disappeared almost as soon as it had been posted.

As someone who practiced for a decade as a public defender, representing many clients who were charged with rape and other forms of sexual assault, I naturally gravitated toward the position taken by the criminal defense bloggers.

Why won’t people read the opinion, look at the statute, and accept that it was the prosecutor’s mistake for charging the guy under the wrong statute, I wondered. Why are they determined to fit this scenario into an old cliché?  Why blame the court for confirming that juries can’t convict someone for crimes he didn’t commit?

But then I remembered how some of my female friends reacted long ago to my career choice. It wasn’t just “how can you defend those people?” but “how can you defend men who victimize women?” and “how can you be a feminist and also a criminal defense lawyer?”

Each of us who does this work answers these questions differently, but the questions themselves haven’t changed and they continue to be asked. I’ve found that responding with a statement about the Sixth Amendment right to counsel can produce eye-rolling and that attempts to talk rationally about cases where women have made false accusations of rape nearly always fail.

Yes, I do know victims of rape, and as the mother of two girls, I desperately want “no” to always mean “no,” but my unqualified disgust with acts of violence against women does not lessen my commitment to the rights of the accused.

I did notice one positive sign amidst the brouhaha. It came from blog editor Xeni Jardin, the author of a post that calls the decision, “Your daily dose of rage.” After being inundated with comments and tweets pointing out the errors and misrepresentations in the coverage, Jardin updated the post by linking to law blogs that had provided “a different perspective” and including an explanatory comment from another blogger.

It wasn’t exactly an admission of guilt, but it was an acknowledgement that there was more to the court’s opinion than what had originally been reported.  As I said, it’s not rocket science.

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