State v. Fourtin
Physical helplessness under C.G.S. §53a-65(6), has a highly particularized meaning unrelated to whether a person is physically able to resist unwanted sexual advances or mentally able to understand when to resist such advances. Following a jury trial, Richard Fourtin was convicted of attempt to commit sexual assault in the second degree in violation of C.G.S. §53a-71(a)(3) and §53a-49(a)(2) and sexual assault in the fourth degree in violation of C.G.S. §53a-73a(a)(1)(C), both of which require proof that the victim, at the time of the offense, was physically helpless. Under C.G.S. §53a-65(6) a person is physically helpless if "unconscious or for any other reason is physically unable to communicate unwillingness to act." Fourtin appealed claiming insufficient evidence was adduced to prove that the complainant's disabilitiescerebral palsy, mental retardation and hydrocephalusrendered her physically helpless within the meaning of C.G.S. §53a-65. The Appellate Court agreed and reversed the conviction noting the uncontradicted evidence that the 25-year-old could communicate using nonverbal methods including screeching, biting and kicking and that the alleged sexual assault came to light because she communicated her distress. The state appealed including an argument that the jury was not required to accept the testimony about nonverbal communication methods and the evidence remainingthat the complainant communicated words solely through a communication boardwas sufficient to support a finding that, at the relevant time, she was unable to communicate unwillingness to an act. The majority of the Supreme Court affirmed the judgment. The state did not pursue the theories raised at trial. Considering the evidence in the light most favorable to sustaining the verdict, and consistent with the state's theory of guilt at trial, the majority concluded that the state did not produce credible evidence that the complainant was either unconscious or so uncommunicative that she was physically incapable of manifesting to the defendant her lack of consent at the relevant time. Case law makes clear that even total physical incapacity does not, by itself, render an individual "physically helpless." The 1987 Connecticut Supreme Court case of State v. Hufford established that physical helplessness under C.G.S. §53a-65(6) applies only to a person who, at the time of the alleged act, was unconscious or for some other reason physically unable to communicate lack of consent. Justice Norcott, with whom Justices Eveleigh and Harper joined, dissented.