The stateSupreme CourtMonday threw out the conviction of a city man found guilty of sexually assaulting a severely handicapped woman.
In a 4-3 decision, the high court ruled that despite evidence the 26-year-old woman cannot speak and has little body movement, there was no evidence she could not communicate her refusal to have sex with the defendant,Richard FourtinJr. As a result of the ruling, Fourtin goes free and cannot be tried for the case again.
Fourtin’s lawyer, Senior AssistantPublic Defender Nicole Donzello, declined comment on the decision.
In January 2008, the 28-year-old Fourtin was convicted by a jury here of attempted second-degree and fourth-degree sexual assault and sentenced to six years in prison for sexually assaulting the severely handicapped woman in the Success Village housing complex in late 2005.
The woman, now 29, who in court only went by her initials, L.K., has severe cerebral palsy and cannot verbally communicate. She is so physically restricted that she is able to make motions only with her right index finger.
In order for the woman to testify during the trial, a small video camera was placed over her and a tray affixed to her chair. On the tray, the prosecutor placed a board printed with the letters of the alphabet along with the words “yes” and “no” on top.
After each question, the woman’s left hand would push her right hand, index finger sticking out, across the board to either spell out a word or answer yes or no. It was an exhausting process that lasted four days.
However, the defense argued that there was evidence the woman could communicate by biting, kicking, screaming and gesturing. They presented testimony at trial from a home health aide who said the woman would kick and groan if she didn’t get food she wanted.
The stateAppellate Courtlater ruled she is not physically helpless under the state law in which a jury convicted Fourtin. The state then took an appeal to the Supreme Court.
"We are not persuaded 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," the high court ruled Monday.
The three dissenting justices accused the majority of acting as a “13th juror,” in the case and substituting their opinion for that of the jury.
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